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S.B. Gowramma Vs. Agricultural Income-tax Officer, Mercara and anr. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtKarnataka High Court
Decided On
Case NumberWrit Petition No. 1554 of 1969
Judge
Reported in[1971]79ITR194(KAR); [1971]79ITR194(Karn)
ActsIncome Tax Act, 1922 - Sections 16(3)
AppellantS.B. Gowramma
RespondentAgricultural Income-tax Officer, Mercara and anr.
Appellant AdvocateK.S. Gourishankar, Adv.
Respondent AdvocateS.R. Rajasekharamurthy, Government-Pleader
Excerpt:
.....under article 226 shall be exercised with the great caution and also in furtherance of public interest and not merely on the making out of a legal point. - that error is apparent in the assessment order dated october 31, 1968; therein, it is clearly stated that the sum of rs......order dated october 31, 1968; therein, it is clearly stated that the sum of rs. 16,098.50 is the share income of the petitioner's minor son, s. b. ganesh. the petitioner's learned counsel, sri k. s. gowrishankar, submitted that the petitioner as the guardian of her minor son will file a separate return respect of her minor son's income for the assessment year 1967-68 and that when such a return is filed, the respondent may proceed to make the assessment on the minor son of the petitioner. 3. for the reasons stated above, the assessment order dated october 31, 1968, made by the respondent for the assessment year 1967-78 is liable to be quashed in so far as it takes in the income of the petitioner's minor son, s. b. ganesh. the income-tax officer has to recompute the tax on the basis of.....
Judgment:

Govinda Bhat, J.

1. Thee petitioner, Srimathi S. B. Gowramma, is one of the partners of the firm by name 'Punniah Group of Estates, Sunticoppa', and is an assessee under the Mysore Agricultural Income-tax Act, 1957, hereinafter called 'the Act.' During the assessment year 1967-68 there were five partners in the said firm, and one of them was a minor son of the petitioner. The petitioner submitted a return of income under the Act for the Assessment year 1967-68, in the status of an 'individual'. In the said return she included not only her share of the income from the firm but also the share of her minor son. On the basis of the said return, the respondent, Agricultural Income-tax Officer, Coorg District, Mercara, made an assessment order on October 31, 1968, by which he added the income of the petitioner's minor son to the income of the petitioner and assessed the tax on the said total income. On January 22, 1969, the petitioner made an application to the respondent under section 37 (2) (b) of the Act for rectification of the assessment order by restricting the assessment made on the petitioner to her income only, since under section 11(2) of the Act, the income of the minor son could not be added to the income of the petitioner. The respondent rejected that application by his order dated February 18, 1969, on the ground that there is no error apparent on the face of the record and the assessment order assessing the income of the petitioner with the income of her minor son was made since a single return in Form III had been field. Aggrieved by the said order, the petitioner has approached this court for relief under article 226 of the Constitution of India.

Section 11(2) of the Act is in pari materia with section 16(3) of the Indian Income-tax Act, 1922. The Supreme Court Commissioner of Income-tax v. Sodra Devi has held that :

'The words 'any individual' and 'such individual' occurring in section 16(3) of the Act are restricted in their connotation to mean only the male of the species, and do not include the female of the species.

In computing the total income of a mother the income of her minor child arising from the admission of the minor to the benefits of partnership in a firm of which the mother is a partner, cannot be included under section 16(3) (a) (ii).'

2. The said decision of the Supreme Court directly governs the facts of the present case. The respondent was not entitled to add the income of the petitioner's minor son to the petitioner's income derived from the firm of which both were partners. That error is apparent in the assessment order dated October 31, 1968; therein, it is clearly stated that the sum of Rs. 16,098.50 is the share income of the petitioner's minor son, S. B. Ganesh. The petitioner's learned counsel, Sri K. S. Gowrishankar, submitted that the petitioner as the guardian of her minor son will file a separate return respect of her minor son's income for the assessment year 1967-68 and that when such a return is filed, the respondent may proceed to make the assessment on the minor son of the petitioner.

3. For the reasons stated above, the assessment order dated October 31, 1968, made by the respondent for the assessment year 1967-78 is liable to be quashed in so far as it takes in the income of the petitioner's minor son, S. B. Ganesh. The Income-tax Officer has to recompute the tax on the basis of the income already determined in the assessment order dated October 31, 1968, and issue a fresh demand notice. There will be an order accordingly. No costs.


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