1. The petitioner is an assessee on the file of the second respondent (the Agricultural Income-tax Officer, .Tiruthuraipoondi) since 1958-59. For the assessment year 1969-70, the petitioner was permitted to compound the tax payable by him on an extent of 50.36 ordinary acres equivalent to 29.73 standard acres by the second respondent. During the assessment year 1970-71, by mistake, according to the second respondent, he was permitted to compound on an extent- of 15.19 ordinary acresequivalent to 8.83 standard acres only. In reducing the holding of the petitioner, the second respondent deducted an extent of 35.47 ordinary acres stated to have been given to the petitioner's two minor sons and three minor daughters under the partition deed dated March 26, 1969. For the assessment year 1970-71, in view of this mistake, the petitioner was called upon to pay the tax of Rs. 14.96 only and a similar order was repeated for the assessment year 1971-72. On a further scrutiny of the records relating to the petitioner's holding, the second respondent came to know that the permission to compound the tax on an extent of 8'83 standard acres only after deducting the lands stated to have been parted with under the partition deed dated March 26, 1969, was not in accordance with the law. Therefore, a show-cause notice was issued on June 3, 1972, calling upon the petitioner why the properties transferred in the name of the minor sons and minor daughters under the partition deed dated March 26, 1969, should not be treated as indirect transfer attracting Section 9(2) of the Agricultural Income-tax Act (hereinafter referred to as 'the Act'). The petitioner received the notice on June 12, 1972. He filed the reply on June 14, 1972, stating that the properties given to his minor sons and daughters have been under their respective enjoyment and possession, and that the transfer cannot be treated as one coming within the purview of Section 9(2) of the Act. The second respondent did not agree with the contention of the petitioner and, therefore, issued another notice under Section 35 of the Act on October 23, 1972, indicating his intention to treat the lands transferred to the petitioner's minor sons and daughters as escaped from the assessment for the years 1970-71 and 1971-72. Thereby, he called upon the petitioner to file his objections, if any. This notice was received by the petitioner on October 30, 1972. An oral enquiry was held on December 8, 1972. During the oral enquiry the petitioner agreed in include the lands transferred to his minor children in his holding and to pay tax on the entire holding for the assessment years in question. On such consent as evidenced by the statements tendered during the enquiry the second respondent revised the assessment font the years 1970-71 and 1971-72, by his orders dated December 18, 1972. As per the revised order under Section 65 read with Section-35, the petitioner was asked to pay a sum of Rs. 308'44 for each of the assessment years in question. Aggrieved by these orders, the petitioner preferred the revision petitions to the first respondent, the Commissioner of Agricultural Income-tax, Madras. The first respondent, after giving a personal hearing to the chartered accountant who appeared on behalf of the petitioner, dismissed the revision petitions by a common order dated October 31, 1973. It is to quash these orders, the present writ petitions have been preferred. Writ Petition No. 1749 of 1974 relates to the assessment year 1970-71, while Writ Petition No. 1750 of 1974 relates to the asssssment year 1971-72. Thus, both these petitions are interconnected.
2. Mr. K. J. Chandran, learned counsel for the petitioner, in attacking the impugned order raises the following points before me :
(1) the authorities below erred in relying upon the statement given by the petitioner daring the oral enquiry conducted by the second respondent. Even if he had given consent that the properties belonging to the minor sons and daughters were includible in his holdings, such consent cannot give jurisdiction to the authority to revise the original assessment;
(2) if it is a partition, it cannot be held to be a transfer at all. That being so, there is no scope for applying Section 9(2) of the Act; much less can it be held to be a direct or indirect transfer within the meaning of Section 9(2)(iv).
3. The learned counsel appearing for the department in meeting these submissions would contend that if the petitioner had given consent nothing more was required on the part of the authority to act upon that consent. Having given the consent to include the lands of his minor sons and daughters, it is not open to the petitioner to go back on that consent now.
4. Since the daughters are not entitled to any share, if a share is given to them it should be held to be a transfer though it is styled as partition.
5. On a careful consideration of the above arguments, I am of the view that the petitioner is well-founded in both the submissions. This is a case in which there was originally an order of assessment on a composition basis. The respondents are wanting to revise that assessment for which purpose a notice was issued under Section 35. Merely because the petitioner had given his consent that will not give jurisdiction to the authority to reopen the assessment. It can be done only if a case has been made out for such a reopening. In other words, the jurisdiction to revise itself would arise only if the original order was wrong and the further discovery has enabled the authority to revise. In this case it is the partition deed which is sought to be ingored, on the ground that the daughters have been married off, and that, therefore, it would amount to a transfer, direct or indirect, within the meaning of Section 9(2)(iv) of the Act. This was the basis of issue of notices. Under these circumstances, the question is whether it was incumbent upon the authority to found its jurisdiction on this basis and again ignore this basis and seek to found the jurisdiction on the consent. Turning to the partition deed, I have myself perused the partition deed dated February 16, 1969. It has all the ingredients of the partition. hether the daughters' are entitled to the share or not and what exactly is the character of the property cannot be gone into by the department. In other words, it is not open to the department to say that since daughters are not entitled to theshares, the provision of shares to those minor daughters would militate againse the partition. It is for the other sharers to question the partition deed if they are aggrieved. There is a valid partition. Partition being not a transfer at all there is hardly any scope to apply Section 9(2)(iv). Thus, the impugned orders manifest errors of law on the face of the record and are, therefore, quashed. The rule nisi is also made absolute. No costs.