Judgment :- 1. The petitioner is the head and manager of a Nambudiri Illom. The Illom was assessed to tax under the Agricultural Income-tax Act, 1950, in respect of the assessment years 1958-59,1959-60,1960-61 and 1961-62. All the four assessment orders were passed on 14 31962. 2. S.3 of the Agricultural Income-tax Act, 1950, provides that agricultural income-tax at the rate or rates specified in the Schedule to that Act shall be charged for each financial year in accordance with and subject to the provisions of that Act on the total agricultural income of the previous year. Sub-sections (3) and (4) of that section as they stood on the date of the assessment orders 14-3-1962 read as follows: "3. In the case of an undivided Aliyasanthana family or branch or Marumakkathayam tarwad including a Nambudiri family or a family like that of the Moothathu or any other class governed by the law applicable to Nambudiries consisting of more than five members and whose agricultural income exceeds six thousand rupees, the tax shall be assessed at the average rate applicable to the share of the agricultural income due to five members of the family or to six thousand rupees whichever is higher. 4. In the case of an undivided Hindu family consisting of brothers only or of a brother or brothers and the son or sons of a brother or brothers and whose agricultural income exceeds six thousand rupees, the tax shall be assessed at the average rate applicable to the share of income due to a brother or to six thousand rupees, whichever is higher. Explanation. For the purposes of this sub-section (a) the expression'share of income due to a brother' means the portion of the total agricultural income of the family which would have accrued to a brother, if a partition of the assets had been effected according to law on the day before the assessment is made; and (b) 'son' includes a son's son". 3. Subsequent to the orders of assessment on 14 31962, an Act was passed, Act 12 of 1964, which amended sub-section (3) and omitted sub-section (4) with effect from 141958. 3. Subsequent to the orders of assessment on 14 31962, an Act was passed, Act 12 of 1964, which amended sub-section (3) and omitted sub-section (4) with effect from 141958. The amended sub-section (3) is in the following terms: "In the case of a Hindu undivided family consisting of more than five members entitled to claim a share on partition and whose agricultural income exceeds six thousand rupees, the tax shall be assessed at the average rate applicable to the share of the agricultural income due to five members of the family or to six thousand rupees, whichever is higher". 4. Subsequent to the amendment, an order under S.36 of the Agricultural Income-tax Act, 1950, was passed by the first respondent assessing the Illom at the rate indicated in sub-section (3) of S.3. That order is Ext. P-2 dated 17-8-1964, and it is the validity of that order that is challenged before us. 5. Sub-section (1) of S.36 provides that the Agricultural Income-tax Officer may at any time within three years from the date of any assessment order passed by him, of his own motion, rectify any mistake apparent from the record of the assessment. If this provision can be invoked, then Ext. P-2 is clearly within time as it is within three years of the date of the four assessment orders concerned, namely, 14 3 1962. 6. The contention of the petitioner is that S.36 is a general section for the rectification of mistakes and that it is S.35 and not S.36 that is applicable to the case. S.35 provides that if for any reason agricultural income chargeable to tax under the Act has escaped assessment in any financial year or has been assessed at too low a rate, the Agricultural Income-tax Officer may, at any time within three years, of the end of that year serve on the person liable to pay the tax a notice containing all or any of the requirements which may be included in a notice under sub-section (2) of S.17 and may proceed to assess or re-assess such income and the provisions of the Act shall so far as may be, apply accordingly as if the notice were a notice issued under that sub-section. 7. 7. We are inclined to take the view that what we have before us is a case of an assessment at too low a rate and that the provision applicable is S.35 as contended by the assessee and not S.36 as contended by the Department. The original assessment was of the income of the Illom at the rate indicated in sub-section (4) of S.3 of the Act. The present attempt, in consequence of the amendments effected by Act 12 of 1964 with effect from 141958, is to assess the same income at the rate indicated in sub-section (3) of S, 3. 8. S.35 and 36 of the Agricultural Income-tax Act, 1950, correspond to S.34 and 35 of the Indian Income-tax Act, 1922. In Palaniappa Chettiar v. Commissioner of Income-tax, AIR. 1930 Madras 126, the Court referred to S.34 of the Indian Income-tax Act, 1922, and said: "S. 34 refers to a specific case, namely, the case where an income chargeable to income-tax has escaped or has been assessed at too low a rate. It may escape assessment leaving the rats unchanged, in which case it is only the amount of the assessment that will have to be raised owing to the rise in the taxable income, or it may escape assessment in such a way that, if rectified, it would take the income beyond a certain rate; for example, it may give the figure to be over Rs. 40,000 in which case it will be assessed at 0-1-6 instead of o-1-0 and the rate will therefore be higher." 9. In In re Chotay Lal, AIR. 1932 Allahabad 83, the Income-tax Officer thought that the assessee was a Hindu undivided family and for that reason did not charge super-tax on the first Rs. 25,000 above the first Rs. 50,000 in accordance with the provisions of the Indian Finance Act, 1929. It was later discovered that the assessee should have been assessed as an individual and not as a Hindu undivided family and that consequently he should have been charged to super-tax under the Act on the first Rs. 25,000 above the first Rs, 50,000 as well. The court said: "In properly calculating the super-tax the officer concerned will take, in the case of a Hindu undivided family, the first Rs. 25,000 in excess of the first Rs. 50,000 of the income, and calculate the rate of tax at the rate 'nil'. 25,000 above the first Rs, 50,000 as well. The court said: "In properly calculating the super-tax the officer concerned will take, in the case of a Hindu undivided family, the first Rs. 25,000 in excess of the first Rs. 50,000 of the income, and calculate the rate of tax at the rate 'nil'. Then he will take the next Rs. 25,000 and will calculate the tax at one anna in the rupee and beyond the lots of Rs. 5,0000 at the rate of 11/2- annas in the rupee." Thus calculating the amount of the income-tax, the rate to be applied to the first Rs. 25,000 over the first Rs. 50,000 of the income-tax was 'nil'. In this view we can easily say that, not only within the spirit but within the letter of the words of S.34, Income-tax Act, a sum of Rs. 25,000 has been assessed 'at too low a rate' " 10. Ext. P-2, in so far as it relates to the assessment years 1958-59,1959-60 and 1960-61, was passed beyond three years of the end of those financial years. It follows that even if we are inclined to treat Ext. P-2 as an order passed under S.35 of the Agricultural Income-tax Act, 1950, it cannot be sustained in respect of those three years and has to be quashed to that extent. We do so. 11. Ext. P-2, in so far as ft relates to the assessment year 1961-62, was passed within three years of that financial year; and the petitioner agrees that the said order in so far as it relates to that assessment year may be treated as an order under S.35 of the Agricultural Income-tax Act, 1950, and sustained to that extent. Ext. P-2 will, therefore, stand as far as the assessment year 1961-62 is concerned. 12. The petition is allowed as above. No costs. Allowed.