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TMI Blog1984 (11) TMI 131X X X X Extracts X X X X X X X X Extracts X X X X ..... ereby the rights in the archakathvam were claimed to have been partitioned. This partition which was said to have taken place with effect from 11-3-1970, was also recognised by an order under section 171 of the Income-tax Act, 1961 (' the Act '), dated 19-1-1972. The archakathvam which was received on this occasion, became taxable for the assessment years 1975-76 and 1976-77. The firm allegedly formed by a partnership deed dated 30-3-1971 with other members of the family, consequent to which partial partition, as stated earlier, was also registered for the assessment year 1971-72 and such registration continued for all later years. Three minor children of the assessee were admitted to the benefits of partnership and, in view of the provision providing for automatic aggregation of such minor's income, the assessee became liable in respect of their share incomes. It was in this context that the ITO initiated action under section 147(a) of the Act, inasmuch as no return had been filed by the assessee in that capacity. The assessee filed returns and revised returns in response to the same. The inclusion of the minors' income in the assessee's hands falling to their share in the firm an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome under section 64(1)(iii). It is against this order that the departmental appeal has been filed. 3. The learned departmental representative took us over the order of the ITO. According to him, the right was a personal one. He exercises his right in consequence of a khararnama executed by the assessee with the devasthanam authorities. His remuneration is for services rendered as archaka in doing pooja. Even if it was to be treated as an office, it could under the circumstances be considered as personal to the assessee. The fact that such income from the archakathvam was assessed in the past in the hands of the family or that partial partition thereof was recognised or the further fact that there was recognition of the firm formed consequent to the partition, would not, in his opinion, stand in the way of a correct assessment in correct hands inasmuch as it is well established that the principle of res judicata and estoppel do not apply to income-tax cases. He pointed out that this was the view of the first appellate authority himself as per his conclusion on the question of the jurisdiction. As for the merits, he claimed that the assessment was justified as the income from archa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ell as merits. 5. We have carefully considered the records as well as arguments. We would prefer to deal with the question of merits first inasmuch as the departmental appeal is only on merits. The assessee is one of the hereditary archakas of Shri Padmavathi Ammavari Temple at Tiruchanur. These hereditary archakas customarily take turn for the period of archakathvam. The assessee's turn comes once in four years. The assessee was assessed in the past on this income as a HUF. The assessee purported to divide his future right in the archakathvam between the family members and, consequently, formed a partnership as well. The partial partition, whereby the right to archakathvam was recognised by the ITO under section 171 stands till today. The order of registration for the assessment year 1971-72, dated 30-3-1971 has been continued for incomes for all the years including the year under consideration. According to the ITO, this right to perform pooja and the customary right to share income from the collections are rights shortly described as the archakathvam, which is personal to the archakas because of the khararnama or the agreement with the devasthanam authorities. However, what is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i Narasimhacharyulu. This settlement was disputed. The Madras High Court observed as under : " An alienation of a religious office such as that of an archakaship of a temple is not invalid when it is made in favour of one in the line of heirs of the aliener and when it is neither for consideration nor in any way opposed to or inconsistent with the interests of the institution. The right of delegation has been expressly recognised in the case of archakas by permitting the system of proxies. Consequently, a device by will of the archakaship to the testator's sister's son who is not in any way personally unfit or disqualified from performing the duties of the office is valid." It is, therefore, clear that the office of the archakaship is not only property but it is capable of being alienated as long as such alienation is in respect of eligible persons in the line of his heirs. The State enactments for better administration of the temples, it was found, cannot interfere with these hereditary rights inasmuch as such rights being rights in property are protected by the Constitution. No doubt, the right to the hundi collections is not automatic in the sense that it is given to him witho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not now in dispute, though objection was raised at the stage of first appeal. The order of the Commissioner, upholding liability only to this extent, is therefore, right and deserves to be upheld. There is no case for adopting the entire income from the archakaship, which now forms the asset of the firm as being available to the assessee in his individual capacity. 6. Inasmuch as there was no assessment in the assessee's case prior to the issue of notice and the assessee was liable to tax in respect of the aggregate income of the minor children, the proceedings under section 148 of the Act have to be upheld as not lacking in jurisdiction. The assessee's other objection is that there cannot be any assessment in the assessee's hands in respect of an income from an asset, which is the subject-matter of recognised partition and registration of the firm subsequently formed. We should ordinarily imagine that this objection is quite reasonable. The authorities should have simultaneously invoked their powers to modify or cancel the order under section 171 and the order of registration, One would have expected that at least the continuation of registration for the assessment year under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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