By this common judgment the Civil Rule No. 4594 of 1994, Civil Rule No. 4596 of 1994 and Civil Rule No. 4598 of 1994 are proposed to be disposed of together as they involve common question of law.

2. I have heard Dr. AK Saraf, the learned senior counsel for the petitioner company and Mr. AK Goswami, the learned State counsel.

3. In this petition the notice dated 6th October, 1994 (Annexure III) issued by the Agricultural Income Tax Officer, Assam has been challenged. By the aforesaid notice, the Agricultural Income Tax Officer, Assam directed the petitioner-firm to submit the details of the allowances State-wise computing the same with reference to the State-wise export turnover and further required the £ firm to show cause as to why the 60 percent deduction allowed will not be added to the agricultural income for the assessment period between 1984-85 and 1988-'89. The petition is also for a declaration that Rule 5 of the Assam Agricultural Income Tax Rules, 1939 is ultra vires of the Act and that re-assessment proposed is also barred by limitation. The notice reads as follows:

"During the assessment proceeding of your company under the Assam Agricultural Income Tax Act, 1939 for the Assessment Year 1984-85,1985-86,1986-87, 1987-88 and 1988-89 your income was assessed to tax without disallowing the deduction under section 80 HHC. which was allowed to you in the central assessment before application of Rule 8 of the Income Tax Rules. Further, this deduction was allowed without reference to the State wise export turnover. Hence, you are required to submit the details of the allowance State wise computing the same with reference to the State wise export turnover. Further, as deduction under section 80 HHC is not allowable before application of Rule 8 of the Income Tax Rules, you are required to show cause on 21.10.94 as to why the 60% of the deduction allowed will not be added to the agricultural income."

4. It would appear from section 30 of the Act of 1939 that within a period of eight years from the end of the assessment year, the Superintendent of Taxes or the Agricultural Income Tax Officer may issue a notice containing all or any of the requirements as specified in sub-section (2) of section 19 and may proceed to assess or re-assess escaped income under the provisions of the Act. It may be mentioned here that the words 'assessment year' have been substituted with effect from 1.4.1989 by the Assam Act No. VI of 1989. Going by the amended provision, I find that the period of eight years from the end of the relevant assessment year expired on 31.3.1993 and 31.3.1994 for the assessment years 1984-85 and 1985-86, respectively. Hence, the notice to the extent it relates to assessment years 1984-85 and 1985-86 are ex facie barred. Reassessment of escaped income, if any, for the aforesaid two assessment years are not permissible because of delay in issuing the notice.

5. That apart. Dr. Saraf questioned the vires of the provisions incorporated in Rule 5 of the Rules of 1939 enabling the State Officers for re-computation of agricultural income from tea grown and manufactured in Assam. A detail discussion of this issue seems to be redundant because the Supreme Court in a recent judgment in Assam Company Ltd & another vs. State of Assam & others reported in 2001 AIR SCW 1325 dealt with the same question and declared the proviso to Rule 5 of the Rules as ultra vires of the State Act to the extent it empowers the State Officers to recompute the agricultural income already computed by the Central Officers under the income Tax Act. It would, therefore, be relevant to reproduce the relevant excerpts from the aforesaid judgment. The quote :

'The income from cultivation, manufacture and sale of tea being a composite income is exigible to both income tax under the Indian Income Tax Act, 1961 and the Assam Agricultural Income Tax Act, 1939.

2. In this context being aggrieved by the decision of the Agricultural Income Tax Officer of the State of Assam