1967 (8) TMI 12 - HC - Income Tax

There was a karar in the tarwad executed by all the members by which the properties of the tarwad have been allotted to female and the junior members of the tarwad for their maintenance - arrangement made in the karar of 1909, for the maintenance of the junior members of tarwad is not a diversion of the tarwad income - Held that provisions of s.s. (1) of s. 9 of the Act are applicable only in cases of diversion of income

Summary

Issues Involved:
1. Whether the arrangement made in the karar of 1909 for the maintenance of the junior members of tarwad is a diversion of the tarwad income.
2. Whether the provisions of sub-section (1) of section 9 of the Agricultural Income-tax Act, 1950, are applicable only in cases of diversion of income.
3. Whether the provisions of sub-section (1) of section 9 read with the provisos thereof are applicable in assessing the income of the Hindu undivided family.

Issue-wise Detailed Analysis:

1. Diversion of Tarwad Income:
The primary issue was whether the arrangement in the 1909 karar for the maintenance of junior members constituted a diversion of tarwad income. The court examined the nature of the karar, which allotted properties to junior members for their maintenance. It was concluded that the arrangement did not create a diversion of income but rather an application of income. The junior members had a right to be maintained out of the tarwad's income, and the karar was a method to discharge this obligation. The court noted, "Instead of the tarwad taking the income from the properties and distributing it to the members for their maintenance, the members of the tarwad were given the right to take the income from the various properties allotted to them and appropriate it for their maintenance." Thus, it was determined that the income was not diverted but applied, and the tarwad remained the recipient of the income.

2. Applicability of Section 9(1) of the Act:
The second issue was whether Section 9(1) of the Agricultural Income-tax Act, 1950, applied only in cases of diversion of income. The court held that Section 9(1) is applicable only if there is a diversion of income. It stated, "We feel that provisions under section 9(1) would come in only if there is diversion of income. It is such diverted income that is made taxable at the hands of the transferor under section 9(1)." Since the court had already determined that the income in question was not diverted but applied, Section 9(1) was not applicable in this case.

3. Applicability of Section 9(1) Read with Provisos:
Given the conclusions on the first two issues, the court found that the third issue did not arise for consideration. The court stated, "The third question does not arise for consideration in view of our above answers." Therefore, the provisions of Section 9(1) read with the provisos were not applicable in assessing the income of the Hindu undivided family in this context.

Conclusion:
The court answered the first question in the negative and the second question in the affirmative, both against the assessee and in favor of the department. The third question was deemed not applicable. The assessee was ordered to pay the costs of the department, including counsel's fee of Rs. 200. A copy of the judgment was directed to be sent to the Appellate Tribunal, Trivandrum.