SETHURAMAN J. - The assessee, by name, Thirumathi Andalammal, is borne on the file of the Deputy Commercial Tax Officer, Tiruchirapalli She holds lands measuring 17.73 acres. For the assessment year 1971-72, the Agrl. ITO passed an order on the basis that she held a total extent of 36.09 acres. There was an objection to the assessment on the ground that the 17.73 ordinary acres were recalled in trust by her under two settlement deeds execute by her and the they ought to be excluded and she could be assessed only on the income from the 18.36 ordinary acres. This objection was overruled and the Agrl. ITO assessed her on the bias of her ownership of 36.09 acres. Against the order of the Agrl. ITO the assessees preferred an appeal to the Assistant Commissioner which was not successful and thereafter to the Tribunal. The Tribunal remanded the appeal to the Assistant Commissioner and, on remand, the Assistant Commissioner confirmed the original order without excluding the trust lands. Again, the assessee preferred an appeal to the Tribunal and it allowed the appeal on August 9, 1974, and directed the Agrl. ITO to exclude the income from the trust lands from assessment.
While the proceedings for 1971-72 were pending at different stage the assessments for the years 1972-73 and 1973-74 were sought to be made At this stage, the assessee filed a composition application under s. 65 of the Tamil Nadu Agrl. I.T. Act, 1955, stating that she was preferring the said application without prejudice to her contentions before the Tribunal. As mentioned earlier, the Tribunal passed order on the assessees appeal on August 9, 1974, and she filed a potion on 12 th February, 1975, for the refund of tax levied on the basis of her composition application for these two years. That composition application has been considered as it the assessee has agreed to be assessed with reference to the income from the 36.09 ordinary acres. The assessee was advised to prefer a revision petition before the Commissioner and, accordingly, a petition was filed before the Commissioner under s. 34 of the Act against the orders of the Agrl. ITO. The prayer was for a refund of the agrl. income-tax paid in excess of the liability with reference of the 18.36 acres owned by her. The Commissioner rejected the revision petition and, therefore, the matter was brought before this court in revision under s. 54(1) of the Act.
When these revision petitions came up for hearing the learned Govt. pleader contended that no revision would lie as s. 54 provided for the High Court revising an order under s. 34 only if the order resulted in an enhancement of the assessment or was otherwise prejudicial to the assessee. As, in the present case, the Commissioner has only declined to interfere with the order, it was contended that there was no prejudice to the assessee and, for this view reliance was placed on the decision of a Full Bench of this court in N. N. Seshadrinathan v. State of Madras : 60ITR482(Mad) .
When the assessee was faced with this situation, she took steps for converting the tax revision case into writ petitions under art. 226 of the Constitution of India praying for quashing the orders of the Commissioner as well as of the Agrl. ITO. The learned Govt. pleader contended that the petition filed for converting the tax revision case into a writ petition should not be granted. We are unable to agree with him and we think that in the peculiar circumstances in which the assessee was placed, the revision petition could be converted into a writ petition. T.C.M.P. No. 270 of 1979 was, therefore, ordered and the tax case was directed to be numbered as Writ petition and the matter is now before us for final disposal.
The contention for the assessee is that the finding of the Tribunal is to the effect that the assessee owns only 18.36 ordinary acres and, therefore, there could be no assessment with reference to any additional area which was not owned by the assessee. As indicated earlier, 17.73 acres were held by the assessee only as a trustee and the holding by her, as a trustee, of certain properties cannot be clubbed with the properties owned by her absolutely. The Commissioner of Agrl. I.T. has pointed out that the composition order were passed on the basis of the application given by the assessee, in which the assessee has stated that, without prejudice to her contentious before the Tribunal, she would have no objection to the composition for all the lands. It was on the basis of this consent that the Agrl. ITO was said to have passed order and it was stated that if she has any reservation about the size of the holding, she would not have given her consent to the composition with reference to the area set out in the application. The Commissioner also pointed out that there was no question. The Commissioner also pointed out that there was no question of any conditional compromise. The learned Govt. pleader, relying on these factors contended that the composition on the basis of the assessees own application should hold the filed.
Section 65 of the Act provided for the composition of agrl. income-tax in the case of any person who holds lands wholly grown with non-plantation crops and who applies to the prescribed officer for permission to compound the agrl. Income-tax payable by him. The liability to agrl. income-tax has been cast, under s. 3(1), on the total agrl. income of the previous year of every person. The postulate of s. 3 is that the income must be the assessees income. It is this liability, on the basis of the assessee deriving income from his or her own land, that is compounded under s. 65. In the present case, when once it is found that the assessee dinette not own any land in excess of 18.36 ordinary acres there could be no liability to compound with reference to any excess ares. It is true that s. 65 provided for the compounding with respect to any person holding any land grown within plantain crops. The expression 'to hold' has been defined in s. 2(nn) as meaning, with its grammatical variations and cognate expressions, 'to as a maintenance-holder or in one or more of those capacities.' In those circumstance, the Agrl. ITO could not have clubbed the 18.36 acres owned by the assessee with the 17.73 acres held by her as a trustee. Even in the case of the disposal of a compounding application, as in the case of as assessment, there is a duty to examine if the assessee is the owner of the lands, especially in a case where the application itself shows that there are sum aspect which require examination. The Agrl. ITO, even when disposing of an application for compounding, is not like a sub-Registrar a document so long as it is duly stamped and there is an admission of execution, supported by the requisites identifying witnesses. To accept the contrary proposition would result in such composition proceedings being left to be sued with ulterior motives. the result is that the assessee would be entitled to the refund as prayed for. The writ petition is accordingly allowed. There will be no order as to costs.