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Mariam Aysha Vs. Commissioner of Agricultural Income-tax - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtChennai High Court
Decided On
Case NumberWrit Petition Nos. 981 and 982 of 1966
Judge
Reported in[1976]104ITR381(Mad)
ActsMadras Agricultural Income-tax Act, 1955
AppellantMariam Aysha
RespondentCommissioner of Agricultural Income-tax
Appellant AdvocateS.V. Subramaniam, Adv. for Subbaraya Ayyar, Sethuraman and Padmanabhan
Respondent AdvocateK. Venkataswami, Adv.
Excerpt:
.....individual as well as that of a trustee or receiver or guardian and if the assessment is undertaken normally under section 17, it appears to be that it is obligatory on the part of the revenue to assess the income separately so that the income of the individual as well as the income of the receiver or guardian may be arrived at......as follows:'veeraswami j. has dismissed that application on the ground that there was a valid consent for clubbing the assessment. we are, however, unable to see how the existence of a valid consent on behalf of the lady would entitle the officer to club together the income received by the lady as well as by her children, the settlees under the settlement of mohammed abubucker, and make one assessment against the appellant alone if under the law it could not so be done.'3. the division bench, however, did not go into the question whether an assessment could be made by clubbing the holdings which are the subject-matter of three independent applications for composition, even though there was a valid consent for the purpose by competent persons. the question now canvassed before me is.....
Judgment:

Ramaprasada Rao, J.

1. These two writ petitions arising under the Madras Agricultural Income-tax Act, 1955, are concerned with the assessment years 1958-59 and 1959-60. One K. A. Mohammed Abubucker owned large extent of lands in Thanjavur District. He settled the said properties on his wife, the petitioner herein, and his two minor children. It is not in dispute that the petitioner on her own and acting for her two minor children filed three independent applications for composition of the taxes under the provisions of the Act. But the Agricultural Income-tax Officer, Mannargudi, assessed the petitioner under Section 34 of the Amending Act, 29 of 1958, by clubbing together the lands owned by her as settlee under the settlement deed as well as those secured by the two minor children under the very same deed. The officer based his order on the consent said to have been given by the petitioner's husband to make such a consolidated order. Some time later, the petitioner when she discovered the mistake, applied to the appropriate authority for rectification of the final order of assessment, and desired that her liability should only be based on the income from the lands owned by her. The petitioner's contention was that she never gave any authority to her husband for clubbing the properties as was done by the assessing authority or to express his consent thereto. The Agricultural Income-tax Officer on the facts held that there was a valid consent. Veeraswami J., as he then was, while disposing of the Writ Petition No. 675 of 1962 filed by the petitioner challenging the order of the Agricultural Income-tax Officer as above, observed thus:

'It will be apparent from what has been stated above that the clubbing was done only with the consent of the petitioner, though it was conveyed through her husband.'

2. On appeal, the Division Bench stated as follows:

'Veeraswami J. has dismissed that application on the ground that there was a valid consent for clubbing the assessment. We are, however, unable to see how the existence of a valid consent on behalf of the lady would entitle the officer to club together the income received by the lady as well as by her children, the settlees under the settlement of Mohammed Abubucker, and make one assessment against the appellant alone if under the law it could not so be done.'

3. The Division Bench, however, did not go into the question whether an assessment could be made by clubbing the holdings which are the subject-matter of three independent applications for composition, even though there was a valid consent for the purpose by competent persons. The question now canvassed before me is that even though the observation of Veeraswami J., as he then was, that there was a valid consent given by the father is to be taken as correct, the order of clubbing the holdings and reckoning the tax on that basis is not correct. Section 34 of the Amending Act of 1958 (Act 29 of 1958), deals with composition of agricultural income-tax in respect of non-plantation crops and provides that notwithstanding anything contained in the Act, any person liable to pay agricultural income-tax under the principal Act as amended by this Act in respect of any agricultural income derived from any land other than the land used for growing tea, coffee, rubber, cinchona or cardamom......may apply to theprescribed officer for permission to compound such agricultural income-tax payable by him. The process of reckoning the tax is prescribed under the Act. No doubt, a person has been defined as an individual or association of individuals, owning or holding property for himself or for any other or partly for his own benefit and partly for another, either as owner, trustee, receiver, common manager, administrator or executor or in any capacity recognised by law, and......But the point is whether such a person holdsthe land in question as an owner or in any other capacity which is otherwise than individualistic. If a person satisfies the characteristics of an owner and that of a trustee, receiver, etc., then he would be fulfilling a double capacity and effectively he would be considered as indicating a dual personality in him. In a case where such a dual personality is projected, Section 8 enjoins the revenue to levy such tax upon such an individual in his capacity as receiver, administrator, executor, trustee, etc. Thus, therefore, if there is a dual personality in one individual or person and if such a person holds lands, then a severability is contemplated if such a person holding such a dual personality comes up with an application for composition. The lands held by him in his capacity as a normal person would be severed from the lands held by him in his capacity as receiver, administrator, etc., and would be dealt with accordingly. I am only illustrating this for the purpose of pointing out that the assessing officer normally has no jurisdictionto club holdings of persons who have a different status in the eye of law and who fill in different legal personalities in any one individual.

4. A fortiori it follows that if the petitioner has filed three independent composition applications, one in her own capacity as owner and the others in her capacity as the guardian of her two minor children, then she has approached the revenue under Section 34 of the Amending Act of 1958, on the distinct ground that the three applications filed by her are separate and one has nothing to do with the other; under Section 8(1), as already stated by me, the revenue is obliged, if it is a normal case of assessment to deal with the income of the minors as income from an individual other than the mother, and the three applications in question would be dealt with separately, the one having no relation to the other. The position is not in any way different in a composition application. But in the instant case, on the strength of the consent given by the father or the husband of the petitioner, the holdings have been clubbed. That consent cannot give jurisdiction is an essential principle of law. The taxing authority can act only if there is a power under the statute to do so. Far from there being any power under the provisions of the Act to club such applications for composition, there appears to be an indication in the Act, though with reference to the normal provisions of assessment under Section 17, to separate such returns and assess them separately. If 'A' satisfies both the capacities of an ordinary normal individual as well as that of a trustee or receiver or guardian and if the assessment is undertaken normally under Section 17, it appears to be that it is obligatory on the part of the revenue to assess the income separately so that the income of the individual as well as the income of the receiver or guardian may be arrived at. This appears to be the principle underlying Section 8. Even while considering composition applications under Section 34 of the Amending Act of 1958, I do not think that any other rule need be applied on the principle of harmonious construction which is a salient principle of interpretation of a statute. Once the guardian or receiver or trustee voluntarily chooses to file a composition application, then the privilege he secures is relatable to the concession in the quantum of tax and he is not disentitled to the other statutory benefits available to him under the other provisions of the statute or under the common law.

5. In this view of the matter as Section 9(2) is conceded to be inapplicable to the facts of this case, I am of the view that the clubbing adopted by the authorities below and which was finally accepted by the Commissioner appears to be against law and is not justified. The order of the Commissioner of Income-tax which is solely based upon the consent given by the father and which decides that such a clubbing is plausible in the eye of law is unsustainable and is, therefore; set aside. The writ petitions are allowed and there will be no order as to costs.


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