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S. Sadasivam Vs. Commissioner of Agricultural Income-tax - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtChennai High Court
Decided On
Case NumberTax Case No. 240 of 1972 (Revision No. 185 of 1972)
Judge
Reported in[1979]116ITR438(Mad)
ActsTamil Nadu Agricultural Income Tax Act, 1955 - Sections 17 and 29(1)
AppellantS. Sadasivam
RespondentCommissioner of Agricultural Income-tax
Appellant AdvocateK. Govindarajan, Adv.
Respondent AdvocateAdditional Government Pleader
Excerpt:
- - 2. we are clearly of the opinion that there are absolutely no merits whatever in this revision petition. ito shall make such inquiry thereinto as he may think fit, and if he is satisfied that the joint family property has been partitioned among the various members or groups of members in definite portions, he shall record an order to that effect......as individuals and the assessments made separately on the assets of the individual members got by family partition. the agrl. ito, coimbatore, on june 29, 1970, purported to pass an order recognising the partition under section 29(1) of the t.n. agrl. i. t. act, 1955, with effect from december 5, 1969, and also pointed out in the order that orders would be passed as huf at the hands of the petitioner for the entire properties for the period from april 1, 1969, to december 4, 969, and separately for the period from december 5, 1969, to march 31, 1970, as individuals on the composition applications filed by them and subsequently he passed orders on these composition applications also. the commr. of agrl. i. t., after issue of notice to all the three, by his order dated 10th october, 1972,.....
Judgment:

Ismail, J.

1. This is a revision petition under Section 54(1) of the Tamil Nadu Agricultural Income-tax Act, 1955, seeking to set aside the order of the Commissioner of Agrl. I. T., Madras, dated 11th October, 1972, suo motu revising the order of the Agrl. ITO, Coimbatore, dated 29th June, 1970, and consequential orders passed in the names of the petitioner, his wife and daughter. The petitioner herein was being assessed on the basis of the composition of the tax up to the assessment year 1969-70 of the extent of 28.28 ordinary acres equivalent to 60.02 standard acres. During the assessment year 1970-71, the petitioner, on June 3, 1970, sent a communication to the Agrl. ITO, Coimbatore, stating that as per the registered partition deed dated December 5, 1969, in document No. 3960 of the Joint Registrar of Coimbatore, the lands have been divided as between himself, his wife, Srimathi Hamsavailchena, and his daughter, Miss Renukadevi, and requested that the assessments be modified as individuals and the assessments made separately on the assets of the individual members got by family partition. The Agrl. ITO, Coimbatore, on June 29, 1970, purported to pass an order recognising the partition under Section 29(1) of the T.N. Agrl. I. T. Act, 1955, with effect from December 5, 1969, and also pointed out in the order that orders would be passed as HUF at the hands of the petitioner for the entire properties for the period from April 1, 1969, to December 4, 969, and separately for the period from December 5, 1969, to March 31, 1970, as individuals on the composition applications filed by them and subsequently he passed orders on these composition applications also. The Commr. of Agrl. I. T., after issue of notice to all the three, by his order dated 10th October, 1972, set aside the order of the Agrl. ITO and consequential orders on the composition applications of the three persons. It is against these orders that the present petition has been filed.

2. We are clearly of the opinion that there are absolutely no merits whatever in this revision petition. It was not disputed that the entire property was obtained by the petitioner herein in a partition that took place between him and his brother, brought about in the year 1958. Consequently, the entire property is ancestral property in the hands of the petitioner in which neither his wife nor his daughter had an interest. Therefore, the alleged partition could not be really a partition as known to the Hindu law and consequently the Agrl. ITO should not have accepted or recognised the said partition. Apart from this, the Commr. of Agrl. I. T. also pointed out that the question of recognising or accepting the partition will arise only in making an assessment under Section 17 of the Act and not in connection with the collection of tax on the basis of composition. Section 29(1) of the Act is clear and states :

'Where at the time of making an assessment under Section 17, it is claimed by or on behalf of any member of a HUF, an Aliyasanthana family or branch or a Marumakkattayam tarwad or tavazhi hitherto assessed as undivided that a partition has taken place among the members or groups of members of such family, branch, tarwad or tavazhi, the Agrl. ITO shall make such inquiry thereinto as he may think fit, and if he is satisfied that the joint family property has been partitioned among the various members or groups of members in definite portions, he shall record an order to that effect.'

3. Thus, it is clear that for the section to apply there must be an assessment under Section 17 and that assessment should be made on a HUF. In this case, as we pointed out already, there was no assessment made under Section 17 on the petitioner herein as a HUF and consequently the question of recognising any alleged partition did not arise. Therefore, looked at from any point of view, the order of the Agrl. ITO was utterly untenable and the Commr. of Agrl. I. T. was fully justified in setting aside that order and the consequential orders.

4. The result is the tax revision case fails and is dismissed with costs. Counsel's fee Rs. 250.


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