JUDGMENT C.A. Vaidialingam, J. 1. In all these three writ petitions, the petitioner is the same. 2. On behalf of the petitioner, Mr. P. K. Subramonia Iyer, learned counsel, challenges the orders of the concerned Agricultural Income-tax Officer, levying penalty Income-tax Officer, under section 20 of the Kerala Agricultural Income-tax Act, 1950. The orders levying penalty in O.P. 1100/61, 1101/61 and 1102/61, are Exts. P-9, P-5 and P-1 respectively, and passed on the same date, namely 23rd May 1961. Under Ext. P-9, a penalty of Rs. 2,500, under Ext. P-5, a sum of Rs. 1,500, and under Ext. P-1, another sum of Rs. 1,500, have been levied as penalty, for what the officer calls a delay in the submission of the returns under section 17 (1) of the Agricultural Income-tax Act, for the assessment years 1958-59, 1959-60 and 1960-61. 3. There are several grounds of attack taken as against the levy of penalty in all these writ petitions, and I will advert to the various points that have been urged by Mr. P. K. Subramonia Iyer, learned counsel for the petitioner, after indicating the circumstances under which these orders appear to have been passed. 4. At the outset, I may state that there is no controversy that the proceedings in connection with all these matters are more or less of the same pattern, and the notices directing the party to show cause against the levy of penalty are also the same, and the actual orders levying penalty in each of the cases are also exactly similar and for the same reasons. Therefore, it is not really necessary for me to consider, in each of these writ petitions individually, the various notices, the explanations offered, the assessment orders passed, and the orders levying penalty. I will only advert to the proceedings connected with O.P. No. 1100/1961 with reference to the exhibits filed there in and which have been accepted by the learned counsel for the petitioner, Mr. P. K. Subramonia Iyer, as well as by the learned Government Pleader, as of the same pattern But the exhibits under which the penalty orders under attack have been made, are given the numbers as given in the respective original petitions themselves. 5. P. K. Subramonia Iyer, as well as by the learned Government Pleader, as of the same pattern But the exhibits under which the penalty orders under attack have been made, are given the numbers as given in the respective original petitions themselves. 5. In respect of the assessment year 1958-59, it is seen that the petitioner, who is a private limited company, (P) Ltd. was originally assessed under section 18 (4) of the Agricultural Income-tax Act, and that is evidenced by Ext. P-4.In, That assessment takes in the period 1st November 1956 to 31st December 1957. 'There was an original petition, O.P. No. 1394/1959, filed by the assessee, challenging this order of assessment, namely Ext. P-4; and it is seen that this Court, by its judgment, dated 10 August 1960, quashed the order of assessment and directed the matter to be taken up afresh, for passing an assessment order In the light of the directions and observations contained therein. 6. Similarly, for the assessment year 1959-60, there were very serious objections taken by the assessee regarding the manner in which the proceedings were conducted, and notwithstanding the specific request made by the assessee to the officer to conduct an inspection of the properties, that request appears to have been not complied with. Therefore, O.P. No. 8 of 1960 was filed in this Court for the issue of a writ of mandamus or other appropriate writ or direction to the concerned Agricultural Income-tax Officer to carry out certain formalities required by the petitioner. That writ petition, again, it will be seen, was disposed of on 10th August 1960, and the matter was sent back to the officer, for proceeding according to law, and in the light of the directions and observations given therein. 7. When all these matters went back to the assessing authority, ultimately and there is no controversy about it -notices under section 17(2)of the Act were issued by the concerned officer, directing the assessee to submit the returns for the three assessment years, in the manner prescribed therein, and within the time mentioned therein. There is also no controversy that in compliance with the notices received under section 17 (2) of the Act, the assessee sent the returns for the years 1958-59, 1959-60 and 1960-61, on 22nd October 1959, 16th November 1959 and 17th August 1960. There is also no controversy that in compliance with the notices received under section 17 (2) of the Act, the assessee sent the returns for the years 1958-59, 1959-60 and 1960-61, on 22nd October 1959, 16th November 1959 and 17th August 1960. There is also no controversy that each of these returns, sent in response to the notices under section 17 (2) of the Agricultural Income-tax Act, was sent In accordance with the notice and within the time specified therein, because this matter may assume some importance, when I consider the very serious attack made by Mr. P. K. Subramonia Iyer, learned counsel for the petitioner, that the assessing authority has proceeded to treat these returns sent under section 17 (2) as delayed returns under section 17 (1)of the Act. 8. After the returns were so filed by the party, it is seen that the assessing authority sent a pre-assessment notice in each of these cases. Ext. P-5 is the pre-assessment notice sent for the assessment year 1958-59. As I mentioned earlier, the communications sent, the replies received and the orders passed, in all these matters, followed the same pattern. 9. It is not really necessary for me to consider the various other matters mentioned in the pre-assessment notice, Ext. P-5, because I am not concerned with those aspects in these proceedings. The only part of Ext. P-5 that requires to be considered is paragraph 5 therein, which has been marked as Ext. P-5 (a). I may also indicate that the pre-assessment notices for all the three assessment years in question, were issued on 24th January 1961. 10. Under Ext. P-5 (a), the assessing authority says that according to the provisions in section 17 (1) of the Agricultural Income-tax Act, the assessee should have submitted his return for 1958-59 before 1st June 1958, but that the return was received in the office only on 22 nd October 1959 and that too, only after a call. Therefore, the assessing authority says : " Thus you have very badly delayed the submission of the return. Your are given an opportunity to show cause within seven days from the date of receipt of this notice, why penalty contemplated in. section 20 of the Act should not be imposed on you for your failure to furnish the return within the time allowed in section 17(1) 11. Your are given an opportunity to show cause within seven days from the date of receipt of this notice, why penalty contemplated in. section 20 of the Act should not be imposed on you for your failure to furnish the return within the time allowed in section 17(1) 11. It will be seen from the nature of the show- cause notice issued by the assessing authority and extracted above, that the officer is proceeding, not on the basis that there has been a default in the submission of the return within the time mentioned in section 17 (1) of the Act, but really calls upon the assessee to explain as to why action should not be taken as against him by way of levy of penalty, for what he calls a delay in the submission of the return under section 17(1).Regarding this aspect, unfortunately, I should say that there is a slight confusion in the mind of the assessing authority both when he issued the pre-assessment notices and also when he passed the final orders levying the penalty in each of the cases. 12. The assessee sent a fairly elaborate explanation in response to the show cause notice in each of these matters. Here again, the only material part of the explanation sent by the assessee, is where he deals with the particular aspect referred to in the show-cause notice, namely, as to why penalty should not be levied as against him for failure to furnish the return within time under section 17(1) of the Act. 13. The reply sent by the assessee is Ext. P-6.It is stated in Ext. P-6, particularly in paragraph 16 [Ext. P-6 (a) ], that paragraph 5 of the show-cause notice relates to the non-filing of the return within the time fixed under section 17(1). The petitioner further says that the Act is new to the Malabar area, and the working of the Act and its implications were practically unknown even to lawyers. It is also stated that the question of the applicability of the Act to the Malabar area was also under considerable doubt, and it is further mentioned that there was an impression that notice would be issued by the officers for sending the return as in the case of individuals. The Managing Director, who has sent the reply Ext. It is also stated that the question of the applicability of the Act to the Malabar area was also under considerable doubt, and it is further mentioned that there was an impression that notice would be issued by the officers for sending the return as in the case of individuals. The Managing Director, who has sent the reply Ext. P-6, further says that he has also received notice in his individual capacity for his personal income, and that there was no purpose as such behind, in the company not sending a return within the time mentioned in section 17 (1) of the Act. 14. There is a further averment in Ext. P-6 to the effect that the company, which is a registered incorporated company, has been sending returns of the income with its assets and liabilities to a public office, namely, the Registrar of Companies. Ultimately it is stated that the mistake, if any, is regretted and may be condoned. 15. There was an order of assessment passed by the assessing authority in each of these matters, and Ext. P-8 is the order of assessment passed for the assessment year 1958-59, on 27th February 1961. It will be seen and there is no controversy, that except making an assessment as such regarding the income of the petitioner and levying the tax and supertax, there is absolutely nothing in this order of assessment regarding the show-cause notice issued for levying a penalty for the delay in the submission of the return under section 17(1); nor is there any reservation made in each of these assessment orders that the question of levying penalty, as contemplated in the show-cause notice, is reserved for further consideration at a later stage- 16. As I mentioned earlier, the assessment orders themselves were passed on 27th February 1961. Nearly three months afterwards, the orders under attack levying penalty were passed by the authority concerned. Ext. P-9 is the order levying penalty passed on 23rd May 1961 for the assessment year 1958-59. The other orders levying penalty, which are under attack, follow the same pattern, and there is no controversy regarding this aspect. 17. In Ext. P-9, the officer refers to the pre-assessment notice issued on 24th January 1961, namely, Ext. P-5. He also refers to the answer or explanation given by the assessee company, namely, E,xt. P-6, dated 1th February 1961. The other orders levying penalty, which are under attack, follow the same pattern, and there is no controversy regarding this aspect. 17. In Ext. P-9, the officer refers to the pre-assessment notice issued on 24th January 1961, namely, Ext. P-5. He also refers to the answer or explanation given by the assessee company, namely, E,xt. P-6, dated 1th February 1961. Then the officer states that " According to the provisions contained in section 17(1) of the Act, the assessee company should have filed the return for the 1958-59 ". But the officer states that the return was received in his office only on 22nd October 1959, and that too after the. issue of a notice from his office under section 17 (2). The assessing authority finally states that " Thus the assessee has very badly delayed the submission of the return ". 18. Pausing here for a minute, it is very clear that, even according to the assessing authority, notices were issued under section 17 (2) of the Agricultural Income-tax Act, calling upon the assessee to furnish the returns within time and there is nothing in Ext. P-9 to indicate that the assessee has not so sent the returns. It cannot also be so, because there is no controversy, that the assessee has sent the returns properly and within the time mentioned in section 17 (2) of the Act. But according to the assessing authority, for this particular year, under section 17(1) of the Act, the assessee should have sent the return voluntarily on or before 1st June 1958 ; and there- fore, he says that in this case, the return was received in his office only on 22nd October 1959 in response to a notice issued under section 17 (2). On this basis, the assessing authority is of the view that the assessee has very badly delayed the submission of the return. 19. The assessing authority further says that the assessee was given an opportunity to show cause why penalty should not be imposed as contemplated in section 20 of the Act for their failure to furnish the return within the time allowed. 19. The assessing authority further says that the assessee was given an opportunity to show cause why penalty should not be imposed as contemplated in section 20 of the Act for their failure to furnish the return within the time allowed. The authority finally says that the answer furnished by the assessee in response to the show-cause notice issued from his office, has been examined and he is not satisfied that the assessee was prevented by sufficient cause from submitting the return in time, and that the explanation offered is also not satisfactory. On this basis, the authority levies penalty in the sum of Rs. 2,500 "for their failure to submit the return in time for the assessment year 1958-59. 20. The other orders namely Ext. P-5 and Ext. P-1 in O.P. Nos. 1101 and 1102 of 1961 respectively, are also of the same pattern, but the only difference is that the amount covered in each of those orders is Rs. 1,500 each. Therefore, for all the years in question, a total sum of Rs. 5,500 has been levied as penalty for the delay in the submission of the returns under section 17(1). 21. Before I advert to the various legal contentions that have been taken before me by Mr. P. K. Subramonia Iyer, learned counsel for the petitioner, this is a convenient stage to refer to some of the statutory provisions themselves. 22. Section 17 of the Kerala Agricultural Income-tax Act, 1950 deals with return of income. Sub-sections (1) and (2) of section 17, which are material for the present purpose, are as follows : "17. (1) Every person, whose total agricultural income during the previous year exceeded the maximum amount which is not chargeable to agricultural income-tax, shall furnish to the Agricultural Income-tax Officer so as to reach him before the 1st June every year a return in the prescribed form and verified in the prescribed manner, setting forth his total agricultural income during the previous year. (2) In the case of any person whose total agricultural income is, in the opinion of the Agricultural Income-tax Officer, of such amount as to render such person liable to payment of agricultural income-tax for any financial year, he may serve in that year a notice in the prescribed form requiring such person to furnish within such period not being less than thirty days as may be specified in the notice, a return in the prescribed form and verified in the prescribed manner setting forth (along with such other particulars as may be provided for in the notice) his total agricultural income during the previous year. " 23. The penalty section comes later. Therefore, it will be seen that under section 17 (1), there is an obligation on the part of the assessee, whose total agricultural income during the previous year exceeded the maximum amount which is not chargeable to agricultural income-tax,to-furnish, what I will call a voluntary return to the concerned Agricultural Income-tax Officer, so as to reach him before the 1st of June of every year. Similarly, under section 17 (2), there is again an obligation on the part of, the assessee, to whom a notice is issued by the concerned Officer, to send within the time mentioned in the notice a return giving the various particulars prescribed under the Act and the rules or mentioned specifically in the notice itself. 24. Sub-section (4) of section 17 gives a right to the Officer to serve on any person, who has made a return under sub-section (1) of section 17, or upon whom a notice has been served under sub-section (2), a notice requiring him, on a date to be specified therein, to produce or cause to be produced such accounts or documents as such Officer may require in support of the return made. Therefore, under sub-section (4) of section 17, it will be seen that there is a power .given to the Officer to issue notices to persons who have sent voluntary returns and also to persons who have sent the returns under section 17 (2), in respect of the production of the necessary materials in support of the return. , 25. Section 18 (4) of the Act deals with the right of the assessing authority to make an assessment to the best of judgment. , 25. Section 18 (4) of the Act deals with the right of the assessing authority to make an assessment to the best of judgment. The only point to be noted in this sub-section is that a default in the matter of sending return under section 17(1), is not one of the grounds, on the basis of which action can be taken under section 18 (4). 26. The other section that requires to be noted, and on the basis of which action has been taken in the present case, is section 20. Section 20 (1) provides that if the Officers mentioned therein, namely, the Agricultural Income-tax Officer, the Assistant Commissioner, the Commissioner or the Appellate Tribunal, are satisfied regarding the matters mentioned in clauses (a), (b), and (c) it is open to them to levy a penalty, in addition to the amount of the Agricultural Incometax and supertax, if any, payable. There is, no doubt, a proviso clause (a), to sub-section (1) of section 20 to the effect that no penalty shall be imposed under the sub-section upon a person who has failed to furnish a return under sub-section (1) of section 17, if he proves that he has no income liable to tax. But the position is slightly different under clause (b) where it is stated that, though a person, to whom a notice under subsection (2) of section 17 has been issued, has failed to send the return, is able to satisfy the Officer that he has no income liable to tax, nevertheless a penalty can be imposed under the section, but the penalty shall not exceed Rs. 25. 27. Under sub-section (3) of section 20, is stated that no order under sub-section (1) or sub-section (2) shall be made unless the assessee has been heard or has been given reasonable opportunity of being heard. 28. Under sub-section (5) of section 20, it is provided that if the Appellate Tribunal, the Commissioner, or the Assistant Commissioner makes an order under sub-section (1), he shall forthwith send a copy of the same to the Agricultural Income-tax Officer concerned. 29. Those are the provisions of the statute which have to be considered in these proceedings. 30. 28. Under sub-section (5) of section 20, it is provided that if the Appellate Tribunal, the Commissioner, or the Assistant Commissioner makes an order under sub-section (1), he shall forthwith send a copy of the same to the Agricultural Income-tax Officer concerned. 29. Those are the provisions of the statute which have to be considered in these proceedings. 30. I may at this, stage indicate that sub-section (1) of section 17 of the Agricultural Income-tax Act corresponds to sub-section (1) of section 22 of the Indian Income-tax, Act, 1922, and sub-section (2) of section 17 of the Agricultural Income-tax Act corresponds to sub-section (2) of section 22 of the Indian Income-tax Act. No doubt, the procedure in sub-section (1) of section 22 of the Income-tax Act is slightly different rent regarding the necessity of calling upon the assessee to file a return within the time mentioned therein by publishing a general notice. There is a further change introduced by the Income-tax Act, 1961 (Act 43 of 1961), in subsections (1) and (2) of section 139. 31. Again, the matters dealt with under section 20 (l)(a) and (b) of the Agricultural Income-tax Act, . are analogous to the provisions contained in section 28(1) (a) of the Indian Income-tax Act, 1922, which again, more or less appear to be substantially the, same as in. section 271 (1) (a) of the Income-tax Act, 43 of 1961. The only matter to be considered is that in section 28 (1) (a) of the Indian Income-tax Act, 1922 and the corresponding section 271 (1) (a) of the new Act, 43 of 1961, there is a further expression used, namely, " in the course of any proceedings. 32. Mr. P. K. Subramonia Iyer, learned counsel for the petitioner, urged several grounds of attack as against the orders levying penalty, which are under attack in these proceedings. 33. The first contention of the learned counsel was that the Agricultural Income-tax Officer had no jurisdiction to treat a return sent, in response to a notice, within time under section 17 (2) of the Agricultural Income-tax Act, as a delayed return under section 17 (1) of the Act. The learned counsel placed considerable reliance upon the provisions of clauses (a) and (b) of sub-section (1) of section 20 of the Act. The learned counsel placed considerable reliance upon the provisions of clauses (a) and (b) of sub-section (1) of section 20 of the Act. According to the learned counsel, a clear distinction is made in respect of cases of complete default in the submission of returns under sub-sections (1) or (2) of section 17, and they are taken in by section 20 (1) (a); and returns sent out of time, either under section 17. (1) or 17 (2) of the Act, which are again dealt with under section 20 (1) (b). The learned counsel urged that a return sent by an assessee, in response to a notice issued under section 17 (2) cannot be considered to be a voluntary return sent beyond time under section 17 (1) of the Act. According to the learned counsel, it may have been open to the assessing authority, if he so chose, when he finds that an assessee is liable to pay agricultural in- come-tax, to proceed against him for a complete default in not sending the return on or before 1st June, as provided under section 17 (1) of the Act, and an action on that basis can be taken only under section 20 (1) (a) of the Act- On the other hand, the learned counsel urged The Agricultural that in this case the show-cause notice issued by the assessing authority, as 'well as the final order levying penalty, clearly show that the assessing authority proceeds as against the petitioner, not for a complete default in the matter of sending the return under section 17(1) read with section 20 (1) (a), but really on the basis that there has been a delay in the matter of sending the voluntary return under section 17(1). 34. The learned counsel urged that an assessee may be in complete default in the sense that he does not send the return at all as required under section 17 (1) of the Act. 34. The learned counsel urged that an assessee may be in complete default in the sense that he does not send the return at all as required under section 17 (1) of the Act. The learned counsel also urged that even after the time mentioned in section 17 (1), it was certainly open to an assessee, in appropriate cases to send the voluntary return, and that return will certainly be beyond the time mentioned in section 17(1); but the essential point is that it is a voluntary return sent by the party in pursuance of the provisions of section 17 (1), though it may be beyond the time mentioned in the sub-section. Therefore, the learned counsel urged that in this case, inasmuch as the assessing authority has absolutely no jurisdiction to levy a penalty on the basis that the return sent under section 17 (2) is a delayed return under section 17 (1), the orders under attack will have to be set aside. 35. The learned Government Pleader, no doubt, relived upon the proviso (a) to section 20(1) of the Act wherein it is stated that no penalty shall be imposed under sub-section (1) of section 20 upon a person who has failed to furnish a return under section 17 (1), if he proves that he had no income liable to tax. On the basis of this, the learned Government Pleader urged that unless the assessment proceedings are initiated and finalised, it is not possible for the assessing authority to find out as to whether the assessee is liable to pay tax, and for this purpose the assessing authority has necessarily to issue a notice under section 17 (2), and when in the course of such proceedings, he finds that an assessee is taxable, he can fall back upon his power to proceed as against his .default inasmuch as he has not complied with the provisions of section 17(1). Therefore, the learned Government pleader- urged that the fact that proceedings under section17 (2) have been initiated, and the further fact that the assessee has sent a return correctly within the time mentioned in section 17 (2), do not in any way take away the jurisdiction of the authority to proceed as against the assessee for a default under section 17(1). 36. The question as to whether! 36. The question as to whether! after initiating proceedings under section 17 (2) and when a return is sent in response to that notice within time, it is open to the assessing authority to treat a party as in default under section 17(1), in my view, does not at all arise for consideration in this case. That is not the basis, which has been adopted by the assessing authority in each of these cases. On the other hand, I have already shown that in the preassessment notices issued, it is categorically stated that the assessee should have sent the return under section 17 (1) on or before 1st June 1958 and that the returns have been sent only after the notice under section 17 (2) have been sent. On this basis, the assessing authority proceeds to say that there has been a delay in the matter of furnishing the return under section 17 (I) of the Act. 37. Again, whatever ambiguity there may be in the show cause notices, the matter is placed beyond all controversy and doubt in view of the clear wording used in the orders levying penalty. In each one of these cases, the assessing authority has clearly stated that the party has complied with the notices issued under section 17 (2), by filing returns within time. But according to the authority inasmuch as the return has to be sent under section 17 (1) on or before 1st June 1958 and as the assessee had sent the return only after the issue of a notice under section 17 (2), it is the view of the authority that the assessee has badly delayed the submission of the return. After due consideration of all these aspects presented before me. by the learned counsel for the petitioner as well as by the learned Government Pleader, I have no hesitation in accepting the contention of the learned counsel for the petitioner. 38. Section 20 (1) (a) of the Agricultural Income-tax Act consists of two parts, namely action being taken as against a party who has without reasonable cause (a) not submitted a return under section 17 (1), i.e., on or before 1st June of every year, and (b) who has not sent the return under section 17 (2) of the Act. 38. Section 20 (1) (a) of the Agricultural Income-tax Act consists of two parts, namely action being taken as against a party who has without reasonable cause (a) not submitted a return under section 17 (1), i.e., on or before 1st June of every year, and (b) who has not sent the return under section 17 (2) of the Act. That is, clause (a) of section 20(1) deals with cases where no returns have been sent at all either under section 17(1) or 17 (2). That is in contrast with what is provided in the next clause, namely, clause (b) of section 20 (1). That clause again deals with two aspects, namely, (a) where an assessee has without reasonable cause not furnished a return within the time allowed and in the manner required by section 17(1) and (b) has without reasonable cause failed to furnish the return within the time and in the manner required in the notice served under section 17 (2). Even at the risk of repetition, I have once again to say that the assessee has in no way committed default by not complying with the terms of the notice issued under section 17 (2). 39. Therefore, in my view, having due regard to the way in - which the matters have been dealt with in respect of the two aspects under clause (a) or (b) of section 20 (1), the question of a default in sending the return under section 17(1) will arise when the assessee has not sent a voluntary return on or before 1st June of the year in question. Again, the question of delayed return under section 17 (1) will and can arise only, when the assessee voluntarily sends a return under section 17(1), but that return is beyond the period mentioned in section 17(1), namely, 1st June of the year in question. Therefore, in these cases, admittedly even according to the Agricultural Income-tax Officer, the petitioner has not sent returns for the year in question on or before 1st June of the particular years. It may be this is a case of default under section 17(1), read with section 20 (1) (a) of the Act. But it is not the case of the Department that the assessee had at any stage sent a voluntary return under section17(1), which voluntary return is beyond the period mentioned in section 17 (1). It may be this is a case of default under section 17(1), read with section 20 (1) (a) of the Act. But it is not the case of the Department that the assessee had at any stage sent a voluntary return under section17(1), which voluntary return is beyond the period mentioned in section 17 (1). That, as I mentioned earlier, can arise only when the assessee himself sends a voluntary return under section 17(1), but beyond the, period mentioned in section 17(1). It is only in such cases, when action is being taken for that purpose, has the statute vested jurisdiction in the authority under section 20(1) (b) of the Act. Only under those circumstances can it be said that when an assessee, not having sent a voluntary return on or before 1st June of the particular year, sends himself a voluntary return subsequent to that period, that return alone can be considered to be a return under section 17(1) sent by the assessee, no doubt beyond the time mentioned therein. Under these circumstances it may be open to the authority to consider, when the order of assessment is being made on the basis of such return, as to whether the assessee has any reasonable cause for not sending the return within time. 40. But those considerations are absolutely irrelevant in these cases, because the assessing authority has admittedly sent a notice under section 17 (2), and in response to the notice the assessee has neither defaulted to comply with the notice nor has he sent the return out of time. He has complied with both the requirements, namely, that he has sent the return, and also sent it within the time. Under these circumstances, the contention of the learned Government Pleader that it is open to the assessing authority to treat the return, properly sent and well within time under section 17 (2), as a delayed return under section 17 (1) cannot certainly be accepted. The statute does not contemplate such a jurisdiction in the officer. But as I mentioned earlier, the question whether the assessing authority is entitled, when he makes an assessment and finds and assessee is taxable to proceed against him for a complete default, i e for not sending the return under section 17 (1), is a totally different matter. The statute does not contemplate such a jurisdiction in the officer. But as I mentioned earlier, the question whether the assessing authority is entitled, when he makes an assessment and finds and assessee is taxable to proceed against him for a complete default, i e for not sending the return under section 17 (1), is a totally different matter. As I mentioned earlier, the authority has not in these cases indicated that he is taking action against the assessee for what I would call, not sending the return under section 17 (1), which default is liable to penalty under section 20 (1) of the statute itself. Therefore I am not inclined to accept the contention of the learned Government Pleader that the assessing authority in this case, had jurisdiction to treat the return sent under section 17 (2) as a delayed return under section 17 (1) of the Act, and being in consequences penalty, as he has now done. On this ground, the orders levying the penalty will have to go. 41. But, nevertheless, there are two or three other contentions that have been placed before me, and it is better that I advert to these also. 42. The learned counsel for the petitioner further urged that section 20 (1) clearly shows that the authorities mentioned therein have been vested with jurisdiction to pass orders levying penalty. But it will be seen that, when jurisdiction has been given to the Assistant Commissioner, who is the appellate authority, to make the order, and in view of the fact that the orders of assessment themselves are subject to appeals; the proper officer to exercise such jurisdiction, under such circumstances, if at all, is only the Appellate Commissioner when he takes up the appeal. 43. The learned Government Pleader urged that in this case, there is no controversy that the orders of assessment are pending appeals. 43. The learned Government Pleader urged that in this case, there is no controversy that the orders of assessment are pending appeals. But the learned Government Pleader pointed out that we do not have the expression in section 20 (1) of this statute similar to what is found in the corresponding provision in the Indian Income-tax Act namely " in the course of any proceedings 'i. So he was prepared to take up the position that notwithstanding the fact that an appeal may be pending as against an order of assessment, it is open to the Agricultural Income-tax Officer also to take proceedings for levying penalty in respect of matters provided to in, clauses (a), (b) and section 20 (1) of the Act. 44. I am not inclined to accept this contention of the learned Government Pleader. It is not as if the statute intended that all the four authorities should exercise their jurisdiction concurrently. If that is so, the position will be very anomalous, that when a proceeding is pending before the Agricultural income-tax Officer, it will be open to the Appellate Tribunal or the Commissioner, or even the Appellate Assistant Commissioner to levy a penalty. That is not a situation which is contemplated by the statute itself. No doubt, the learned Government Pleader is correct to this extent in his contention, namely, that the expression " in the course of any proceedings" does not occur in section 20 (1) of the Agricultural Income-tax Act That by itself does not make any difference. The more natural and reasonable interpretation to be put on section 20 (1) will be that each of the officers mentioned therein, when a proceeding is pending before them, can properly consider the question of levying penalty in respect of matters provided in clauses (a) and (b) of section 20 (1). In my view, such a construction is also in consonance with the provisions contained in section 20 (5) of the statute, because it is provided therein that when the Appellate Tribunal, the Commissioner or the Assistant Commissioner makes an order under sub-section (1) levying penalty, there is an obligation on the part of each of those officers to send forthwith a copy of the order to the Agricultural Income-tax Officer concerned. 45. 45. Therefore, in my view, when once the proceedings before the Agricultural Income-tax Officer had terminated-and I will refer to this aspect when I deal with the third contention of the learned counsel for the petitioner as. early as 27th February 1961, and more especially because there is no reservation regarding the levy or penalty in the assessment orders already passed, there is absolutely no jurisdiction, which can be said to, survive in the assessing authority to take proceedings by way of levying penalty on 23rd May 1961, when admit- assessment orders were pending appeals-before the appellate authority. If the learned Government Pleader's position is accepted, the position will be that when an appeal is pending against an assessment order and the appellate authority has to consider the question whether the order levying a particular tax is correct or not, and when the statute itself provides that the penalty to be imposed must have some proportion to the tax levied, the officer disregarding all those matters pending before the appellate authority, can himself start proceedings to levy penalty as he liked. As I mentioned earlier, the more reasonable construction to be put upon section 20 (1) of the Act, notwithstanding the fact that the expression " in the course of any proceeding ", does not occur in this statute, is to limit the jurisdiction of the officers, mentioned therein to deal with the question of levying penalties, when the matter is properly before them in the proper forum. Therefore on this ground also the orders levying penalty will have to be set aside. 46. The third ground of attack raised by Mr. P. K. Subramonia Iyer, learned counsel for the petitioner, is one based upon the provisions of section 20 (3) of the Agricultural Income-tax Act, wherein it is specifically provided that no order under sub-section (1) or sub-section (2) shall be made unless the assessee has been heard or has been given reasonable opportunity of being heard. In this case, Mr. P. K. Subramonia Iyer, learned counsel for the petitioner, urged that in the show cause notice issued in such of these matters, no doubt, the assessing authority on 24th January 1961 has called upon the petitioner to show cause as to why penalty should not be levied. In this case, Mr. P. K. Subramonia Iyer, learned counsel for the petitioner, urged that in the show cause notice issued in such of these matters, no doubt, the assessing authority on 24th January 1961 has called upon the petitioner to show cause as to why penalty should not be levied. The assessee has given explanation or answers to the said notices, and admittedly on 27th February 1961 the assessment orders for the years in question have been made by the assessing authority. The question of penalty has not been dealt with in those assessment orders, nor. is there a reservation in the said orders that the question of penalty will be taken up later. Therefore, the learned counsel urged that the party acted properly in proceeding on the basis that when action was intended to be taken by the officer for levying penalty along with other matters, and when answers had been furnished by the assessee and that when the final orders of assessments had been made, the natural impression left on the mind of the party was that the assessing authority was satisfied with the explanations given by the assessee and that the proceedings for levy of penalty were dropped. The learned counsel also urged that if the question of levying penalty is again to be taken up, there is an obligation and duty on the part of the authority to comply with the statutory protection given to persons like the petitioner under section 20 (3) of the Act. 47. No doubt, this intention of the learned counsel for the petitioner was sought to be met by the learned Government Pleader on the ground that the sub-section is only to the effect that an assessee mast be heard or should be given a reasonable opportunity of being heard. Even according to the case set up in the petition, the learned Government Pleader urged, the assessee has been heard in response to the show cause notice in connection with the assessment proceedings themselves. Even according to the case set up in the petition, the learned Government Pleader urged, the assessee has been heard in response to the show cause notice in connection with the assessment proceedings themselves. Therefore, the learned Government Pleader urged, that once the assessee has been heard, if he proceeded on the basis that the proceedings were not closed the mistake is not on the officer and it does not affect the jurisdiction of the officer himself, and once the assessee had been heard and given a reasonable opportunity in response to the show cause, notices it is open to the .assessing authority to levy the penalty as it has done in these cases. 48. I have absolutely no hesitation in rejecting this contention of' the learned Government Pleader. When once the officer has issued the notice and, when the party has sent an explanation, the proper stage for the assessing. authority to consider whether proceedings by way levy The Agricultural or penalty initiated already was when the party appeared before the authority and the final orders of assessment were passed in these cases. The final orders of assessment were passed on 27th February 1961,.and there is absolutely nothing in the orders to indicate any reservation of the right of the assessing authority to proceed further in the matter of levying penalty. Therefore, there was nothing wrong if the petitioner states that he got the impression that though action was proposed to be taken and the final orders of assessment were passed, the question of levying penalty was dropped. This certainly gains considerable support from the fact that the assessing authority has not chosen to levy any penalty in the assessment orders, dated 27th February 1961. Therefore, if the assessing authority intended again to pursue the matter and levy penalty, there was certainly an obligation on the part of the authority to give a further notice to the assessee and give him an opportunity under section 20 (3) of the statute. Section 20 (3), in my view, gives a statutory right to the assessee, and inasmuch as that right has been seriously violated by the assessing authority, it must be held that he has no jurisdiction to levy any penalty. Therefore, on this ground also the orders under attack will have to be set aside. 49.The last objection raised by Mr. Section 20 (3), in my view, gives a statutory right to the assessee, and inasmuch as that right has been seriously violated by the assessing authority, it must be held that he has no jurisdiction to levy any penalty. Therefore, on this ground also the orders under attack will have to be set aside. 49.The last objection raised by Mr. P. K. Subramonia Iyer, learned counsel for the petitioner, is, no doubt, on the merits. The learned counsel was prepared, to say that the orders levying penalty are absolutely perverse. According to the learned counsel, the original order passed under section 18 (4) has been set aside by this Court in O.P. No. 1394 of 1959. 50. As to whether the provisions of the Travancore-Cochin Agricultural Income-tax (Amendment) Act, 1957, No. 8 of 1957, extending the principal Act to the Malabar area, were valid, was in considerable doubt.- That question was decided by a Full Bench of this Court on 7th November 1958 in the decision reported in Ananthanarayana Iyer v. State I.L.R 1959 Kerala 125. This decision of the Full Bench necessitated the passing of an Ordinance, namely, Agriculture cultural Income-tax (Amendment) Ordinance, 1959 (No. 2 of 1959) which was promulgated on 12th January 1959. Again the provisions of the Ordinance were amended by the passing of the statute, namely, the Agricultural Income-tax (Amendment) Act, 1959, No. XI of 1959, on 20th March 1959. No doubt the Ordinance and the new Act enact that the provisions of the Agricultural Income-tax Act will have application to Malabar area also with effect from 1st April 1957, and that is why in each of the explanations furnished by the assessee fo the Agricultural Income-tax Officer in these cases, the assessee has stated that the question as to whether the provisions of the Agricultural Income-tax Act apply, to Malabar area was in serious controversy and doubt and that even lawyers had very serious doubts about this matter. It is also seen that that doubt is not an imaginary one, but a real one, as will be clear from the various Acts that had to be passed and ultimately to give effect to the provisions of that Act from 1st April 1957 Act XI was passed on 20th March 1959. 51. It is also seen that that doubt is not an imaginary one, but a real one, as will be clear from the various Acts that had to be passed and ultimately to give effect to the provisions of that Act from 1st April 1957 Act XI was passed on 20th March 1959. 51. All these matters were within the knowledge of the assessing authority, when the assessee says that the question as to whether the Act itself applies or not, was in controversy. In these circumstances it was absolutely improper for the assessing authority to levy penalty in the manner he has done in each of these cases, for the mistake committed by the assessee in sending voluntary returns. No doubt as to whether on the materials the assessee has been able to satisfy the authority concerned under section 20 (1) (a) and (b) that he had reasonable cause for not complying with certain things, may not be ordinarily interfered with by this Court, if the authority had approached the matter reasonably and properly, having due regard to the materials available before him, to come to a conclusion. In view of all these enactments, the finding that the assessee had no reasonable cause for not filing the return under section 17 (1) within the time mentioned, is, in my view, ignoring essential facts ; and on that ground also the orders levying penalty have to be set aside. 52. No doubt, the learned counsel for the petitioner also urged that the penalty levied in each of these cases totalling to Rs. 5,500, is very arbitrary and exorbitant. I am not inclined to go into the quantum of the levy made. But what I am concerned with only is, as I mentioned earlier, the approach made by the assessing authority in the matter of the levy, and I am satisfied that he has not really applied his mind genuinely in considering the question whether the assessee has sufficient cause for not submitting the return under section 17(l). I am proceeding on the basis that action has been taken for default under section 17(1) and that the officer has jurisdiction otherwise to levy a penalty. I am proceeding on the basis that action has been taken for default under section 17(1) and that the officer has jurisdiction otherwise to levy a penalty. Even on that basis the levy of penalty in the circumstances of these cases, is absolutely unwarranted and unjustified because the assessing authority has disregarded all these matters namely the various provisions regarding the taking of proceedings under the original statute, the Travancore-Cochin Agricultural Income-tax (Amendment) Act, 8 of 1957, which necessitated the Ordinance and later the passing of the statute itself on 20th March 1959. It may be that the provisions of the statute, namely the Kerala Agricultural Income-tax Act, XI of 1959 passed on 20th March 1959, no doubt, gives retrospective operation to the Agricultural Income-tax Act with effect from 1st April 1957. But to say that on or before 1st June of the particular year, the assessee should have sent his return is not in my view, absolutely arbitrary and unjust, because it may be that the provisions of the statute may be made to relate back to a material period but certainly the penal provisions of the statute cannot also be invoked, under the circumstances, for levying penalty, as the officer has done in these cases. 53. Therefore, all the grounds of attack raised by the learned counsel for the petitioners as against the orders in question, namely Exts. P9, P5 and P1 in the respective writ petitions, levying penalty as against the petitioner, are upheld, and the said orders are set aside. The writ petitions are accordingly allowed If the penalties have been realised, the authority concerned will forthwith . refund the amounts so collected to the petitioner. I he parties will bear their costs in all these writ petitions.