Chandrakantaraj Urs, J.
1. In this writ petition the petitioners who are all brothers have impugned the validity of the assessment order dated January 23, 1976, passed by the respondent-Agrl. ITO, Tumkur Circle, Tumkur.
2. The fact which are not in dispute may be stated as follows:
Petitioners are all residents of Handanakere village in Chikkanayakanahalli Taluk. Their father dies in the Year 1965. Petitioners were member of an HUF but on November 6, 1964, there was a partition by metes and bounds and also by a panch palupatti in the family and the petitioners have been since then enjoying the properties that have fallen to their shares separately. The income of any one of the petitioners from the share allotted to him does not attract the imposition of tax under the Karnataka Agrl. I.T. Act (hereinafter referred to as 'the Act'), as it is below the taxable limit. However, about the end of March, 1973, the respondent issued a notice to the 1st petitioner who is the 2nd of the three brothers under s. 18(2) of the Act calling upon him to make a return of the income for the previous year, that is, for the year 1972-73. Similarly, other notices were also sent for the subsequent years calling upon him to file a return. It is obvious that the petitioners did not make any representation nor responded to the notice as directed. In that circumstance, the impugned order came to be passed.
3. However, it is apparent from the impugned order itself, as well as the assertion made by the petitioners that a Commercial Tax Inspector deputed by the respondent did visit the village on August 24, 1974, in order to prepare a report as to whether there was partition of the properties or not. The report supports the assertion that a partition did take place by metes and bounds and a panch palupatti though not by a registered partition deed. The respondent has, however, ignored the fact of partition on the ground that it was not brought to his notice in timer before the time of inspection. He also held that there was no documentary evidence to prove the partition of the family. In that circumstance, he derived in accordance with the calculation made by the respondent from the total average of coconuts owned by all the three brothers and brought the same to tax under s. 19(4) of the Act. Aggrieved by the same, the petitioners have preferred this writ petition, inter alia, contending that the order made is one without jurisdiction inasmuch as none of the petitioners has assessable income under the Act and further that the respondent erred in holding that the petitioners remained undivided even after receiving the report from the Commercial Tax Inspector who was deputed for that purpose.
4. Prima facie it appears that the respondent erred in assuming jurisdiction to asses the petitioners as an HUF even after coming to know before passing the order that there was a partition by a panch palupatti and by metes and bounds. In so far as Hindus are concerned, it suffices to destroy the character of an HUF if by action or otherwise there was a severance of status as HUF. The Supreme Court in the case of Kalyani v. Narayanan, : 2SCR1130 , has held that to constitute a partition what was necessary was a definite and unequivocal indication of intention by a member of a joint family to separate himself from the family and what form such intimation, indication or representation of such interest should take would depend upon the circumstances of each case.
5. In the instant case on hand, when there was a panch palupatti and the properties were separated by metes and bounds to each of the co-shares, it is sufficient expression by one of the members, if not all of them indicating his intention of severance of status as member of the joint Hindu family., It is no doubt true that the respondent was handicapped by the inactivity of the 1st petitioner in not making either a representation of filing an annual return for himself and his brothers when in 1973 itself notice under s. 18(2) of the Act was issued to him. But, the 1973 itself not be sufficient to bring to tax that which otherwise is not taxable under law. The respondent when he came to know from the report of the Commercial Tax Inspector that there was a partition he should have either proceeded to issue new notices to the petitioners to file their returns or should have proceeded to assess them as tenants-in-common under sub-s. (3) of s. 3 of the Act bringing to tax only the individual income derived by each of the tenants-in-common.
6. In this view of the matter the petitioners succeed. Rule is made absolute. The impugned order is quashed. The demand notice issued consequent thereto is also quashed as without the authority of law and without jurisdiction.
7. In the circumstances of the case, having regard to the negligence on the part of the 1st petitioner to make a representation in regard to the partition that took place prior to his receiving the notice under s. 18(2) of the Act, there will no order as to costs.