SESHACHALAPATI J. - This is an application to issue a write of mandamus to the Income-tax Officer and District Collector, Kurnool. The petitioner claims to be a member of an undivided Hindu family. He was doing business in groundnut oil and in respect of the assessment year 1953-54 an order was made by the Income-tax Officer imposing a tax of Rs. 7,876.31 on the petitioner in his status as an individual. The petitioner filed an appeal before the Assistant Commissioner of Income-tax. Similarly, for the assessment year 1954-55 the petitioner was assessed as an individual and a tax of Rs. 4,929.62 has been imposed in respect of which, however, no appeal was filed.
The petitioner applied to the Income-tax Officer under section 45 of the Income-tax Act not to treat him as a defaulter. Eventually, a notice under section 46(2) would appear to have been issued and the second respondent, the Collector, purported to bring the properties of the joint family to sale no November 15, 1959.
The first objection taken by Mr. Ramakrishnaiah, learned counsel for the petitioner, is that the Income-tax Officer had not disposed of his application for stay; and, relying upon the decision of the Andhra High Court in Vetcha Sreeramamurthy v. Income-tax Officer, Vizianagaram, it is argued that the Income-tax Officer, having been given a power of discretion to be used for public purpose, is bound to exercise it in appropriate cases. I this I am not persuaded that the Income-tax Officer did not exercise his discretion. The tax for 1953-54 had to be paid by March 20,1958. On March 19,1958, on an application filed by the assessee, the present petitioner, asking for four months time for paying the tax, the Income-tax Officer extended the time for payment up to April 15,1958. On April 5,1958, the petitioner applied for the stay of the collection of tax till the disposal of the appeal by the Appellate Assisant Commissioner. On that application the Income-tax Officer had extended the time till April 25,1958. In these circumstances, there is no substance whatsoever in the contention that the Income-tax Officer failed and neglected to exercise his power of granting stay under section 45 of the Indian Income-tax Act.
The next objection raised by the learned counsel is that no notice of the sale has been given to him. The counsel for the department has produced the copy of the notice issued by the village officer on July 9,1958, and the learned counsel for the petitioner has, therefore, not pressed this objection.
The main objection, however, is that for the realisation of taxes due from the assessee, who is a member of an undivided Hindu family, the entire properties of the joint family cannot be proceeded against. In that connection reliance is placed upon a decision of Jaganmohan Reddy J. in kakkirala Rama Rao v. Income-tax Officer, Rajahmundry Circle. That the business with reference to which income-tax has been imposed on the petitioner is the individual business and not the business of the joint family, is the common case of the parties. It is now settled law that in Madras, Bombay and Madhya Pradesh the undivided interest of a coparcener in the joint family property can be alienated for consideration and may also be seized and proceeded against in execution, for his separate debt. When such an alienation is made for consideration by a coparcener or the undivided share is sold in execution, it is open to the purchaser to work out his rights by filing a suit for partition. It is unnecessary to refer to cases on a point which is very well known. I may, however, refer to a very learned judgment delivered by five judges who sat and decided the case of Peramanayakam v. Sivaraman. In the case upon which the learned counsel for the petitioner has placed reliance, there is a clear statement that while the joint family property in its entriety cannot be made liable for the tax arrears of an undivided member, the Income-tax Department is not precluded from exercising the right to attach and recover the tax due from the undivided member from out of his share of the joint family properties, it any.
It seems to me, therefore, that the right of the department to proceed against the undivided share of the coparcener and bring it to sale cannot be seriously disputed. The department, however, cannot proceed against the joint family properties in the hands of the other coparceners, who have nothing to do with the business of the assessee. The sale notices bringing the entirety of the property of the joint family will be modified in the light of the directions given above.
The writ petition is, therefore, dismissed subject to the above observations. In the circumstances, I make no order as to costs.