INSPECTING ASSISTANT COMMISSIONER OF AGRICULTURAL INCOME TAX AND SALES TAX, KOZHLKODE versus POOMULLI MANAKKAL PARAMESWARAN NAMBOODRIPAD

298

INSPECTING ASSISTANT COMMISSIONER OF AGRICULTURAL. INCOME TAX AND· SALES TAX, KOZlllKODE v. POOMULLI MANAKKAL PARAMESWARAN NAMBOODRIPAD August 18, 1971 (K. S. HEGDE AND A. N. GROVER, JJ.]

Travancore-Cochin Agricultural Income-tax Act, 1950, as amended

by Act 12of1964, s. 29-Scope of

In 1958, there was a partition in the family of the respondent by a it was conceded on behalf In January 1960, registered partition deed. of the Agricultural Income-tax Officer, before the High Court, that the respondent was liable to be taxed only as an 'individual', that is, it was conceded that the respondent's family was a divided family. Various attempts made by the Department thereafter, to assess the reepondent as Karta of his family were set aside by the High Court, and the res pondent and other members of his quondam family were asces"d as 'individuals' till 1964. In 1965, notice was again issued to the mpondent with respect to the assessment year 1961-62 for assessing him as the karta of his family, and the respondent filed a writ petition in the High Court. The Department contended that in view of the arcendment of s. 29 of the Travancore-Cochin Agricultural Income-tax Act, 1950, by Act 12 of 1964, it was permissible for the Department to re-assess the respondent as the Karta of the family as no decision that the respondents family was a divided family had been rendered by the Agricultural Ir.ccme- tax Officer and the family must hence be deemed to be an undivided family. The High Court held in favour of the assessee.

Dismissing the appeal to this Court,

A

B

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D

E

HELD: (I) The amended s. 29 was given retrospective effect from F

It is attracted to an April I, 1958; but it is only a machinery section. assessment proceeding only if one of the two conditions prescribed in sub. s. (I) is established, namely, either the family in question was being assessed as an undivided family in the previous assessment yt:ar, or, that the family was being assessed for the first time. The deeming provision contained in s. 29(3) can have application only in cases where one or the other conditions prescribed by s. 29(1) is satisfied and not G otherwise. [303F-G; 307F-H]

In the present case, every attempt made by the assessing authority to. assess the quondam family of the respondent was set aside by the High Court and the department had not only not assessed that family as an undivided family, but had assessed the individual members of the family as divided members. That is, It cannot also be was divided or not had been gone into and decided. said that the family was 'hitherto assel!lled: as a Hindu undivided family'. [307H; 308A-B]

the question whether the family H

t::OMMR. AGRIC.. INC.OMETAX V. P.M.P. NAMBOODRIPAD (lfegde, J.)

299

A

B

(2) The expressiOn 'which (meaning family) is being assessed for the first time as a Hindu undivided family' presupposes the existence of the family. Section 29(1) does not permit the assessing authority to create a family by re-joining the divided parties or otherwise. If the family has ceased to exist even before the assessment proceeding started then there can be no family which is being assessed to tax for the first ume. [308B-F]

In the present case, the family sought to be taxed was 'non-existing' in the concerned previous years and hence could not be considered as a Hindu undivided family 'being assessed for the first time'. Therefore, the 'deeming' provision in s. 29(3) could not be applied.

[308G-H]

Additional Income-tax Officer, Cuddapah v. A. Thimmarya 55 I.T.R.

C

666(S.C.), referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 62

and 63 of 1969.

Appeals from the judgment and order dated November 21, 1967 of the Kerala High Court in 0. P. Nos. 2979 of

D 1965 and 1395 of 1966.

V. A. Seyid Muhammad, P. K. Pillai for M. R. Krishna

Pillai, for the appellant (in both the appeals).

S. T. Desai and A. S. Nambiar, for the respondent

(in both the appeals).

E

F

The Judgment of the Court was delivered by Hegde, J. In these appeals by certificates brought by the Department, we have to decide as to what is the true scope of s. 29 of the Kerala Agricultural Income-tax Act, 1950 as amended in 1964 (to be hereinafter referred to as the Act)?

This case has a long history which by no means is complimentary to the Department. The common res pondent in both these appeals moved the High Court of Kerala under Art. 226 of the Constitution praying that the G appellant herein may be prohibited from taking further proceedings for assessing him as the karta of Poomulli Mana to agricultural income-tax for the assessment year 1961-62.

The respondent was the karta of a Namboodri family known as Poomulli Mana till March 3(), 1958. The H Namboodris in the Malabar District of the Kerala State were previously governed by the Madras Nambudri Act, 1932. Now they ar~ governed by the Kerala Nambudri

300

SUPREME COURT REPORTS

[1972] l S.C.R.

A

In the assessment year 1957-58, the asses- c

Act, 1958. The respondent's family owned large tracts of lanls both in Malabar District which was a part of the Madras State till November 1, 1956 as well as in the erst while Travancore and Cochin State. Under the States Reorganization Act, 1954, the new State of Kerala was formed consisting of the former Malabar District of the B State of Madras as well as the former Travancore-Cochin State. The new State of Kerala came into being on Novem ber 1, 1956. Thereafter the Travancore-Cochin Agricul tural Income-tax Act, 1950 was extended to the former Malabar District with effect from April l, 1957 by Kerala Act 8 of 1957. sing authorities assessed Poomulli Mana as an undivided family. That order was quashed by the High Court. On March 30, 1958, the members of the family entered into a registered partition deed under which the family became divided. Thereafter the respondent ceased to be the karta of the family. Nevertheless the authorities under D the Act issued notices to the respondent under s. 17 (2) and s. 39 of the Act proposing to assess him as the manager of his H.U.F. for the assessment years 1957-58 and 1958-59. The respondent challenged the validity of those notices before the High Court of Kerala. When the case came up for hearing before a Division Bench of the High Court, E the learned Counsel appearing for the Department infor med the Court that the Department was going to assess the respondent only as an "individual" and not as the karta of his family. OQ the basis of that representation, the Court passed the following order :

F

"Th_e learned Government Pleader submits, quite categoncally that the is of the petitioner as an 'individual', and not in any other capacity.

assessment proposed

1

to proceed further with

In view of the submission we do not consider it necessary the petition. We record the fact that the Department does not pro- pose to assess the petitioner except as an individual and leave him to seek his remedies under the Act or the Constitution in case he feels himself aggrieved by any subsequent action of the Department." Despite this assurance, the Department issued a notice under s. 35 of the Act on February 9, 1960 proposing to

G

H

COMMR. AGRIC. INCOMETAX V. P.M.P. NAMBOODRIPAD (Hegde, J.)

301

A assess the respondent as the karta of his H.U.F. for the I assessment year 1959-60. The respondent again moved the High Court to quash that notice. The said notice was quashed by a learned single judge of the High Court on January 3, 1961 on the ground that it is against the under- taking given by the Government in the earlier proceedings. That decision was affirmed in appeal. Yet another notice dated November 8, 1961 was issued by the Department under s. 35 to the respondent to show cause why he should not be taxed as the karta of his H.U.F. for the assessment year 1958-59. This notice was again quashed by the High

8

c Court by its judgment dated December 17, 1963.

Section 29 of the Agricultural Income-tax Act, 1950 was amended by the Kerala legislature by Act 12 of 1964. We shall now set out s. 29 as it stood before its amendment in 1964 as well as the amended section.

D

Section 29 of the Act (before the amendment by Act

12 of 1964) read thus :,t

"29. (1) Where at the time of making an assess- ment under Section 18, it is claimed by or on behalf of any member of a Hindu undivided family, (Ali yasanthana family or branch or Marumakkathayam tarwad) hitherto assessed as undivided that a parti- tion has taken place among the members or groups of members of such family or tarwad the Agri cultural Income-tax Officer shall make such inquiry thereinto as he may think fit, and if he is satisfied that the joint family property has been partitioned among the various members or groups of members in definite portions he shall record an order to that effect :

Provided that no such order shall be recorded until notice of the inquiry has been served on all the adult members of the family or tarwad entitled to the property as far as may be practicable or in such other manner as may be prescribed.

(2) Where such an order has been passed, the Agricultural Income-tax Officer shall make an assessment of the total agricultural income received by or on behalf of the family or tarwad as such, as if no partition had taken place, and each member

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302

SUPREME COURT REPORTS

[ 1972] l S.C.R.

or group of members shall, in addition to any agricultural income-tax for which he or it may be se parately liable, and notwithstanding anything con tained in clause (a) of Section 10, be liable for a share of the tax on the incomes so assessed accor- ding to the portion of the family or tarwad property allotted to him or it and the Agricultural Income tax Officer shall make assessments accordingly on the various members and groups of members in accordance wit.h the provisions of Section 18 : Provided that all the members and groups of members whose family or t?rwad property has been partitioned shall be liable jointly and severally for the tax on the total agricultural income received by or on behalf of the family or tarwad as such up to the date of the partition.

A

B

c

(3) Where such an order has not been passed in respect of a Hindu family, (Aliyasanthana family or branch or Marumakkathayam tarwad) hitherto assessed as undivided, such family or tarwad shall be deemed for the purposes of this Act to continue to be an undivided family or tarwad." Section 29 after its amendment by Act 12 of 1964 E

D

reads :

"(!) Assessment after partition of a Hindu

undivided family.-

Where at the time of making an assessment under section 18, it is claimed by or on behalf of any member of a family hitherto assessed as a Hindu undivided family or which is being assessed for the first time as a Hindu undivided family that a partition has taken place among the members or groups of members of such family, the Agricultural Income-tax Officer shall make such inquiry thereinto as he may think fit, and if he is satisfied that the joint family property has been partitioned among the various members or groups of members in definite portions he shall record an order to that effect :

Provided that no such order shall be recorded until notice of the inquiry has been served on all the adult members of the family entitled to the pro-

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A

COMMR. AGRIC. INCOMETAX V. P.M.P. NAMBOODRIPAD (liegde, J.)

,303

perty as far as may be practicable or in such other manner as may be prescribed,

(2) Where such order has been passed, the Agricultural Income-tax Officer shall make an assess ment of the total agricultural income received by or on behalf of the family as such, as if no partition had taken place, and each member or group of mem bers shall, in addition to any agricultural income tax for which he or it may be separately liable, and notwithstanding anything contained in clause (a) of sub-section (I) of section 10, be liable for a share of the tax on the incomes so assessed accor ding to the portion of the family property allotted to him or it and the Agricultural Income-tax Offi cer shall make assessments accordingly on the various members and groups of members in accor dance with the provisions of section 18 :

Provided that all the members and groups of members whose family property has been parti tioned shall be liable j'.)intly and severally for the tax on the total agricultural income received by or on behalf of the family as such upto the date of the partition.

(3) Where such an order has not been passed in respect of a family hitherto assessed as a Hindu undivided family or which is being assessed for the first time as a Hindu undivided family, such family shall be deemed, for the purpose of this Act, to continue to be a Hindu undivided family."

The amended provision was given retrospective effect with effect from April I, 1958. Taking advantage of foe amendment of s, 29, the Department again issued a notice to the respondent on June I, 1964 under s, 35 of the Act calling upon him to show cause why he should not be assessed as the karta of his H.U.F, for the period from It may be noted November I, 1956 to March 31, 1958. that uptill that date the respondent and other members of his former family were beihg assessed as 'individuals' and In other words for the the earlier assessment years, the pepartment had proceeded on the basis that the family wits a divided family.

levied had been paid.

tax so

B

c

D

E

F

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H

304

SUPREME COURT REPORTS

[1972] l S.C.R.

On receipt of the notice dated June 1, 1964, the respon- A

dent again moved the High Court of Kerala to quash the same on various grounds. One of the grounds taken was that the family of the respondent having been treated as divided family in the earlier assessment proceedings, it was not open to the Department to proceed to assess B him as the karta of a non-existing family. When that proceeding was pending before the High Court, the asses sing authorities passed orders assessing the respondent as karta of his family. A Division Bench of the Kerala High Court quashed the impugned notice as well as the assess- ment made.

c

In that notice the assessing autho- n

During the pendency of the last mentioned proceeding, the Department issued two more notices to the assessee (marked Ex. P-1 and P-3 before the High Court). The relevant notice for our present purpose is Ex. P-1 and it is dated March 10, 1965. rity, in the purported exercise of its powers under s. 35 of the Act required the respondent to file a return of the agricultural income of his family in the previous years beginning from April I, 1961 and ending on March 31, 1961, chargeable to tax for the assessment year 1961-62 within 35 days of the receipt of that notice. The notice E further mentioned that the action proposed therein was permissible in view of the amendment of the Act, by Act 12 of 1964. The respondent replied that in view of the partition in his family, he could not be assessed as the karta of his family and further the partition in question had been accepted by the Department and that the assessments were F made on the members of the family, ?s "individuals" from 1959-60 to 1964-65. Thereafter che respondent again moved the High Court to quash those notices on various grounds. The Department contended that in view of the amendment of s. 29 of the Act by Act 12 of '1964, it was permissible for it to reassess the respondent as the karta G of the family as no decision that the respondent's family is a divided family had been rendered by the Agricultural Income-tax Officer and therefore the family must be deem- ed to be an undivided family.

The Writ Petition was heard by a bench of three judges H

consisting of Mathew, Krishnamoorthy Iyer and Bala kriShna Eradi, JJ. By a majority (Krishnamoorthy Iyer

COMMR. AGRIC. INCOMETAX V. P.M.P. NAMBOODRIPAD (flegde, .!. )

30S

A and Eradi, JJ.) the Writ Petition was allowed and the im

pugned notices were quashed. Mathew, J. was of the· opinion that the action taken by the Department was; permissible under s. 29 of the Act as amended.

B

Now turning to s. 29 of the Act before its amendment,. it corresponded with s. 25-A of the Indian Income-tax Act, 1922. The scope of s. 25-A of the Indian Income-tax Act, 1922 came up for consideration both before the· Judicial Committee as well as before this Court in various cases .. It is sufficient if we refer to the decision of this Court in Additional Income-tax Officer Cuddapah v. A. Thimmayya c and another (1). Therein this Court considered the object with which that provision was enacted as well as its scope. Delivering judgment of the Court Shah, J. (as he then was) ohserved :

D

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H

"Under the Indian Income-tax Act, 1922, as it originally stood, a Hindu undivided family was regarded by section 3 as a unit of assessment, but no machinery was set up for levying tax or for enforcing liability to tax on the members of the family, if before the order of assessment the family· was divided. Absence of this machinery was more acutely felt because of section 14 (1) which provided that tax shall not be payable by an assessee in respect of any sum which he received as a member Income received by a of a Hindu undivided family. Hindu undivided family could not therefore be assessed the mem bers of the family, if at the time of making the the family was divided. To rectify assessment what was obviously a lacuna, the legislature .in corporated section 25A for assessment and enforce- ment of liability to tax income received by a Hindu undivided family, which was no longer in. exi$tence at the date of assessment. But the new section went very much beyond rectifying the defect in the. statute which necessitated the amendment ...

collected

from

and

The section makes two substantive provisio1s (i) that a Hindu undivided family which has been;

OJ 55 !.T.R. 666.

306

SUPREME COURT REPORTS

[1972] l S.C.R.

that

assessed to tax shall be deemed, for the purposes of the Act, to continue to be treated as undivided and therefore liable to be taxed ih status unless an order is passed in respect of that family recording partition of its property as contemplated by sub-section (I); and (ii) if at the time of making an assessment it is claimed by or on behalf of the members of the family that the property of the joint family has been partitioned among the mem· bers or members in definite portions i.e., a complete partition of the entire estate is made resulting in such physical division of the estate as it is capable of being made, the Income-tax Officer shall hold an enquiry and if he is satisfied that the partition had taken place, he shall record an order to that effect."

A

B

c

Before proceeding to examine the scope of s. 29, let us D

Tecapitulate the events that had taken place.-(i) As long back as March 30, 1958, there was a partition in the family ·Of the respondent; that partition is evidenced by a regis tered deed. The genuineness as well as the validity of the (ii) On January 18, 1960 on behalf deed is not in dispute; of the Agricultural Income-tax Officer, it was conceded E before the High Court that the respondent was liable to be taxed only as an "individual". The implication of this concession was that the respondent's family was a divided family; (iii) Various attempts made by the Department to assess the respondent as karta of his family even after the decision of the High Court on January 18, 1960 were F frustrated by the orders of the High Court referred to earlier and; (iv) The respondent and the other members of his quondam family were assessed as "individuals" from 1958-1964. Those assessments had become final and tax levied on them had been paid.

Section 3(1) is the charging section in the Act. That

:section reads :

G

"Agricultural Income-tax at the rate or rates specified in the Schedule to this Act shall be charged for each financial year in accordance with and subject to the provisions of this Act, on the total agricultural income of the previous year of every person."

H

A

B

c

COMMR. AGRIC. JNCOMETAX V. P.M.P. NAMBOODRIPAD (Hegde, J.)

30");"

"Person" is defined in s. 2 (m) as follows :

" "person" means any individual or association of individuals, owning or holding property for himself or for any other, or partly for his own benefit and partly for another, either as owner trustee, receiver, common manager administrator, or executor or in any capacity recognised by law and includes, a firm, or a company, an association of individuals, whether incorporated or not, and any institution capable of holding property."

•

Hindu Undivided Family as defined in s. 2 (kk} includes:

a family governed by Madras Nambudiri Act, 1932.

Under the Act what is brought to tax in an assessment year is the income of the assessee in the previous year.. 0 The scheme of taxation under the Act is similar to that under the Indian Income-tax Act, 1922. The liability to pay tax under the Act in respect of any income is incurred as and when the income is earned and the total income on which the tax is payable in any particular previous year gets settled at the end of the previous year. Section E 29 is only a machinery section. This Court has held that s. 25A of the Indian Income-tax Act, 1922 is only a machi nery section. The same must be the position in regard to s. 29 of the Act.

Section 29 is attracted to an assessment proceeding F . only if one of the two conditions prescribed in s. 29 (1) is established. Either the family in question was being assessed as an undivided family in the previous assessment year or that family is being assessed for the first time. If neither of these conditions exist, s. 29 has no application whatsoever. The deeming provision contained in s. 29 G (3) can have application only in cases where one or the other condition prescribed in s, 29 (1) is satisfied and not otherwise. As seen earlier, every attempt made by the assessing authority to assess the quondam family of the . respondent was set aside by the High Court. The High Court has repeatedly held that 1 hat family is a divided H family. Again the assessing authority itself in the_ pr~-· vious years had proceeded on the basis that the family 111 qurstion is a divided family. It had not only not asses,ed

.308

SUPREME-COURT REPORTS

(1972] I S.C.R.

A

In other words it had held. C

that family as an undivided family bctt l11d assessed the individual members of that family as divided members of .that family. Hence the question whether that family was divided or und:v:ded had been gone into in the earlier years and decided. That being so, it cannot be said that the family was "hitherto assessed as a Hindu undivided B family". Nor can it be said that the family was "being assessed for the first time as a Hindu undivided family". As seen earlier that family was sought to be assessed as Hindu undivided family earlier but ultimately the assessing authority had to assess the members of that family as members of a divided family. the family to be divided one. Such a family cannot be ·considered as being "assessed for the first time as a Hindu undivided family''. The expression "which (meaning fa mily) is being assessed for the first time as a Hindu undi vided family" presupposes the existence of the family. That is a condition precedent. Section 29 (1) does not D permit the.assessing-authority to create a family byrejoining the · a·ivided parts or otherwise. If that is not so, families which had been divided years back can be again resurrected by the assessing authorities for the purpose of the Act. The family referred to in s. 29 (1) is a family known to law E and not a deemed family. The amendment of s. 29 has introduced C)nsiderable confusion into that section. At the time of the assessment either there is a family or there is no family. If there is a family its liability has to be Judged on the basis of the Act. If the family has ceased to exist even before the assessment proceedings started F then there can be no family which is being assessed to tax for the first time. Possibly the intention of the legislature was to bring in the cases of undivided families not taxed in the previous yi;ars which were in existence during the whole or part of the previous year but were divided before the .assessment proceedings commenced. for us in this case to decide whether that intention has been expressed with sufficient clarity so as to make it enforceable. Suffice is to say that in this case, the family sought to be taxed was non-existing in the concerned previous years and hence cannot be considered as a Hindu undivided family "being assessed for the first time". That being so H there is no room for application of the "deeming" pro- vision in s. 29 (3).

It is not necessary Gi

~

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COMMR. AGRIC. !NCOMETAX \". P.M.P. NAMBOODR!PAD (Hegde, J.)

309

Looking at the course of events, one cannot fail to notice with regret the persistence with which the Department was harassing the respondent. To say the least the conduct of the concerned ollicers in this case cannot inspire confidence in the functioning of the Department .

For the reasons mentioned above we see no merit in these

appeals. They are accordingly dismissed with costs.

V.P.S.

Appeals dismissed.

.