R.L. Gulati, J.
1. This is a reference which has been submitted by the Agricultural Income-tax (Revision) Board, U. P., Lucknow, hereinafter referred to as the Board, under Section 24(4) of the Agricultural Income-tax Act. The reference is a consolidated one relating to the assessment years 1360 to 1363 Fasli.
2. One Raja Mohd. Azam Khan was assessed to agricultural income-tax for the assessment year 1360 F. in respect of the income derived by him from the agricultural property standing in his name. Separate proceedings were taken against his wife, Rani Hazars Begum but, as her income was found to be below the taxable minimum, no assessment was framed against her. It appears that afterwards some information came into the possession of the agricultural income-tax department on the basis of which it formed the opinion that the Raja and the Rani constituted an association of individuals within the meaning of Section 2(11) of the Act. Accordingly, for the years 1361 to 1363 F. the income of the Raja and the Rani was clubbed together and they were assessed to tax as an association of individuals under Section 15(3) read with Section 25 of the Act. In respect of the assessment year 1363 F. proceedings were taken without the aid of Section 25 of the Act and the assessment was framed treating the Raja and the Rani to be an association of individuals. Against the assessment orders for the years 1361 to 1363 F. three appeals were preferred before the Commissioner, which were dismissed. Thereafter, three revision applications were filed before the Board. The State also filed a revision application against the assessment order relating to the year 1360 F. on the ground that the income of the Rani should have also been clubbed with the income of the Raja and they should have been assessed as an association of individuals. The four revision applications were heard together and were disposed of by a common order dated June 29, 1959. The assessee's revision applications were dismissed while that of the State was allowed. The assessment order for the year 1360 F. was set aside and the case was remanded to the assessing authority for the assessment of the Raja and the Rani as an association of individuals.
3. By means of four separate applications, the assessee applied for a reference to this court under Section 24(1) of the Act. These applications were dismissed by the Board by its order dated April 13, 1960. Thereupon, the assessee applied to this court under Section 24(4) of the Act and this court by four separate orders, all dated September 9, 1963, directed the Board to Submit a statement of the case for the opinion of this court on the questions of law which arose out of the order of the Board. In compliance with this order, the Board has now submitted this consolidated reference for the opinion of this court on the following two questions of law :
'1. Whether the assessee and his wife could be said to be an association of individuals within the meaning of Section 2(11) of the Agricultural Income-tax Act on the grounds that they live together, that the lands standing recorded in their names are cultivated and managed jointly, that in Suit No. 135, decided on September 3, 1961, an area of 120.19 acres was held to be in the sole possession of the assessee and to have beenfictitiously recorded in the name of his wife and that in another suit an exchange of lands recorded in the names of the assessee and his wife was sanctioned under Section 161 of the U. P. Zamindari Abolition and Land Reforms Act ?
2. Whether the assessing authority could take proceedings under Section 25 of the Act on the ground that in Suit No. 135 decided on September 3, 1961, it was held that an area of 120.19 acres was fictitiously recorded in the name of the assessee's wife and that it was in the assessee's exclusive possession ?'
The question No. 1 relates to the assessments years 1360 and 1363 F. while question No. 2 relates to the assessment years 1361 and 1363F.
4. The facts as they appear from the statement of the case and the revisional order of the Board are these :
(i) There is some land which is recorded in the name of the Raja and some other land is recorded in the name of his wife.
(ii) The Raja and his wife live together.
(iii) Their lands are cultivated and managed jointly.
(iv) In Suit No. 135 decided on September 3, 1961, it was held that part of the land measuring 120.19 acres recorded in the name of his wife was really in the sole possession of the Raja, and that the name of his wife was fictitiously recorded in the revenue papers.
(v) An exchange was effected under Section 161 of the U. P. Zamindari Abolition and Land Reforms Act whereby the land measuring 83.8 acres in Rampur village was taken in exchange by the Raja for the land measuring 59.10 acres in certain villages in Gorakhpur recorded in the name of his wife.
On these facts, the Board came to the conclusion that the Raja and the Rani formed an association of individuals and their income was liable to be assessed together.
5. Under Section 3 of the Act which is the charging section, tax is to be paid for each year on the total agricultural income of the previous year of every person. The term 'person' is defined in Section 2(11) of the Act, which reads as under :
'2. (11) 'person' means an individual or association of individuals,owning or holding property for himself or for any other, or partly for hisown benefit and party for that of another, either, as owner, trustee,receiver, manager, administrator or executor or in any capacity recognizedby law, and includes an undivided Hindu family, firm or company but doesnot include a local authority.'
Section 2(11) in fact enumerates the assessable entities and also defines an 'association of individuals' which is one of the assessable entities. Under the Indian Income-tax Act an association of persons is an assessable entity. The expression 'association of persons' is wider than 'association of individuals' inasmuch as it includes combination of such entitles as may not be individuals, technically speaking. In the Indian Income-tax Act the term 'association of persons' has not been defined. But, though a series of judicial pronouncements, it has been settled that in order to constitute an association of persons it must be joint in a common purpose, or in action, and the object of the association must be to produce income--it is not enough that the persons receive the income jointly. Further, in the case of co-owners, if their shares are defined and ascertainable, mere co-ownership is not sufficient to justify an assessment as an association of persons: see Commissioner of Income-tax v. Indira Balkrishna,  39 I.T.R. 546 ;  3 S.C.R. 513 (S.C.). However, the term 'association of individuals' has been defined in the U. P. Agricultural Income-tax Act. According to the definition of this term as contained in Section 2(11), property must be held by an individual as owner, trustee, receiver, manager, administrator or executor or in any other capacity recognised by law and further the property must be held by him for himself or any other, or partly for his own benefit and partly for the benefit of others. The mere co-ownership-of property, where the shares of the co-owners are defined shall not convert the co-owners into an association of individuals. One of such co-owners must hold the property afar the benefit of all the co-owners in one of the capacities mentioned if Section 2(11), namely, in the capacity of a trustee, receiver, manager, administrator or executor or in any capacity recognised by law under which one person is entitled to hold and manage the property on behalf of others. The mere common management of the property by the co-owners for the sake of convenience shall not bring about an association of individuals.
6. In the instant case, neither the Raja nor the Rani owned or held any property in any of the capacities mentioned above. The land is either recorded in the name of the Raja or in the name of the Rani. The mere fact that they live together or that their lands are cultivated and managed jointly is not enough to convert them into an association of persons.
7. The fact that some of the lands recorded in the name of the Rani was found in fact to belong to the Raja is wholly irrelevant for the determination of the question as to whether or not they constitute an association of individuals. The fact that some land which was found to be fictitiously recorded in the name of the wife when in fact it belonged to the husband might affect assessment of the husband in so far as the income from such land may be liable to be included in the income of the husband. Similarly, the fact that some land belonged to the wife was taken in exchange by the husband for some land belonging to him is also entirely irrelevant.
8. In our opinion, none of the circumstances relied upon by the Board were relevant for the determination of the question as to whether the husband and the wife formed an association of individuals so that their income could be clubbed together. We, therefore, answer the first question in the negative.
9. The question No. 2 relates to the applicability of Section 25 of the Act which provides for the assessment of income which escaped assessment either in whole or in part. In view of our answer to the first question, question No. 2 would really not arise for the simple reason that, as the Raja and his wife did not form an association of persons, there would be no question of the income of such an entity escaping assessment. We, therefore, return no answer to question No. 2.
10. The assessee is entitled to the costs of this reference which we assess at Rs. 100. The fee of the learned counsel is also assessed at the same figure.