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Porinchu Variath Vs. Deputy Commissioner of - Court Judgment

LegalCrystal Citation
CourtIncome Tax Appellate Tribunal ITAT Cochin
Decided On
Reported in195527ITR503(Coch.)
AppellantPorinchu Variath
RespondentDeputy Commissioner of
Excerpt:
.....act xxiii of 1121 in so far as it relates to agricultural income-tax has not ceased to have effect. question no. 1, therefore, has to be answered in the negative.we hold that the present assessment under travancore act xxiii of 1121 is valid and intra vires and does not offend any provision of the indian constitution.3. the answer to the third question depends upon that to the second. as regards the second question there is no statement of the case made by the tribunal. along with the reference an affidavit of the assessee dated 26th november, 1951, has been forwarded to this court. that affidavit was presented before the appellate tribunal itself. the list of documents forwarded to this court contains a note regarding item no.4 namely "not sent, which the deputy commissioner of.....
Judgment:
SUBRAMANIA IYER, J. - These are references made by the Agricultural Income-tax Appellate Tribunal, Trivandrum, at the instance of the assessee, Poranchu Varied, Thekkinedath House, North Parur, under section 113 (1), Travancore Income-tax Act, XXIII of 1121. The following three questions have been referred : "(1) Whether in view of the sections of the Indian Finance Act of 1950, the present assessment under the Travancore Income-tax Act (XXIII of 1121) is invalid and ultra vires and offends the provision of the Indian Constitution (2) Whether the assessee has discharged the burden with regard to providing that himself and his brother are holding the properties in their separate and their joint names as tenants-in-common The assessment years in question are 1125 and 1126, the account years being 1124 and 1125.

2. On the first question the contention of learned counsel for the assessee is that section 13 (1) of the Indian Finance Act, XXV of 1950, has rendered assessment to agricultural income-tax for the years in question impossible because the law which authorised it, namely, Travancore Act XXIII of 1121, has been repealed by that section.

Section 13 (1) of the Finance Act is as follows :- "13 (1). If immediately before the 1st day of April, 1950, there is in force in any Part B State other than Jammu and Kashmir or Manipur, Tripura or Vindhya Pradesh or in the merged territory of Cooch-Behar any law relating to income-tax or super-tax or tax on profits of business, that law shall cease to have effect except for the purposes of the levy, assessment and collection of income-tax and super-tax in respect of any period not included in the previous year for the purposes of assessment under the Indian Income-tax Act, 1922 (XI of 1922) for the year ending on the 31st day of March, 1951, or for any subsequent year, or, as the case may be, the levy, assessment and collection of the tax on profits of business for any chargeable accounting period ending on or before the 31st day of March, 1949." Travancore Act XXIII of 1121 contains provisions regarding assessment to tax on agricultural income and other income. Entry No. 82 in List No. 1 in the Seventh Schedule to the Constitution pursuant to which the Finance Act was passed does not authorise the Central Legislature to legislate in respect of agricultural income because the entry reads "Taxes on income other than agricultural income". Act XXV of 1950 uses the expression "income-tax" as comprising all income except agricultural income. The expression "any law relating to income-tax, or super-tax or tax on profits from business" in section 13 (1) should, therefore, be inferred as confined in its operation to income other than agricultural income and the sub-section provides that "that law shall cease to have effect except for the purposes of the levy, assessment and collection of income-tax and super-tax in respect of any period not included in the previous year for the purposes of assessment". The reason why it is provided that that law shall cease to have effect is that the Act of the Central Legislature has occupied the field. The occupation of the field is only in respect of income except agricultural income. Further, section 13 (1) does not repeal any previous statute but only provides that the law shall cease to have effect. When the Legislature intends to repeal a statute it is so expressly mentioned as is clear from the language of the second sub-clause of section 13 of the Finance Act which reads : "If immediately before the 1st day of April, 1950, there is in force in any State other than Jammu and Kashmir a law corresponding to, but other than an Act referred to in sub-section (1) of (2) section 11, such law is hereby repealed with effect from the said date; and if immediately before the said date there is in force in the State of Jammu and Kashmir a law corresponding to the Indian Post Office Act, 1898 (VI of 1898), such law is hereby repealed with effect from the said date." On a true interpretation of section 13, clause (1), of the Finance Act, in our judgment the law embodied in Travancore Act XXIII of 1121 in so far as it relates to agricultural income-tax has not ceased to have effect. Question No. 1, therefore, has to be answered in the negative.

We hold that the present assessment under Travancore Act XXIII of 1121 is valid and intra vires and does not offend any provision of the Indian Constitution.

3. The answer to the third question depends upon that to the second. As regards the second question there is no statement of the case made by the Tribunal. Along with the reference an affidavit of the assessee dated 26th November, 1951, has been forwarded to this court. That affidavit was presented before the Appellate Tribunal itself. The list of documents forwarded to this Court contains a note regarding item No.4 namely "not sent, which the Deputy Commissioner of Agricultural Income-tax and Sales Tax is directed to be forwarded." That affidavit has not been forwarded to us. In the statement of the case no mention is made about either of these affidavits which are relied upon by the assessee as having proved that he is a co-owner. Nor is there a statement of facts which would enable this Court to answer the second question. We have, therefore, to send the case back to the Appellate Tribunal under section 113 (4) of the Travancore Act XXIII of 1121, for submitting to this court a fresh and sufficient statement of the case in order that the second and third questions may be answered. The second question does not appear to be properly framed. The attention of the Tribunal is directed to the necessity for framing the question in the proper manner before a fresh reference is made to this Court. The reference will stand Court. The reference will stand answered accordingly. Both the parties will bear their respective costs.


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