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TMI Blog1961 (8) TMI 42X X X X Extracts X X X X X X X X Extracts X X X X ..... in mining. For the years 1941-42, 1942-43, 1943-44, 1944-45, 1945-46 and 1946-47 the family was assessed to tax. Assessments for the years 1941-42 to 1946-47 were made on 30th September, 1947, 30th September, 1948, 28th February, 1949, 15th March, 1950, and 30th November, 1950, respectively. The assessments for the years 1941-42 and 1942-43 were subject to reassessments under section 34 of the Act. The total tax imposed on this family was ₹ 65,750. Meanwhile, i.e., on 20th March, 1948, an application under section 25A was made by one of the sons of Krishnappa (Venkatanarasu) before the Income-tax Officer, Cuddapah, putting forward a case of partition of the Hindu undivided family styled as Krishnappa and Sons, which was till then assessed as a Hindu undivided family, and of division of the joint family properties between the members in definite portions and requesting the Income-tax Officer that an order be made under section 25A(1) of the Act and assessments made on the several members of the family in accordance with the requirements of section 23 read with section 25A(2). The proper officer passed an order on June 30, 1952, holding that the partition of the family must ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... due and payable by them, since the partition was made in June, 1952, long after the assessments were made. It was also urged by the learned counsel for the department that the petitioners were not entitled to pray for the issue of a writ of certiorari, as the notices were not judicial or quasi-judicial proceedings but were purely administrative or ministerial acts. Our learned brother overruled the objections formulated on behalf of the appellants and granted a writ of mandamus having regard to the plea of the department that the notices were in the nature of administrative or ministerial acts. The primary challenge to the judgment of our learned brother is founded upon section 25A(3) of the Act. As the answer to the arguments advanced on either side turns on the interpretation of section 25A, it is convenient to read that section here. It reads: 25A. (1) Where, at the time of making an assessment under section 23, it is claimed by or on behalf of any member of a Hindu family hitherto assessed as undivided that a partition has taken place among the members of such family, the Income-tax Officer shall make such inquiry thereinto as he may think fit, and, if he is satisfie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt Hindu family to have the benefit of that section, there should be an order of the Income-tax Officer recognising the partition of the family. Before we proceed further with the consideration of the question as to the applicability of section 25A(3) we shall refer to the judgment of the Supreme Court in Lakhmichand Baijnath v. Commissioner of Income-tax [1959] 35 I.T.R. 416; [1959] Suppl. 1 S.C.R. 415, which contains the reasons that induced Parliament to introduce section 25A. In the course of the judgment, this is what their Lordships observed: That section was, it should be noted, introduced by the Indian Income-tax (Amendment) Act, 1928 (3 of 1928), for removing defect which the working of the Act as enacted in 1922 had disclosed. Under the provisions of the Act as they stood prior to the amendment, when the assessee was an undivided family, no assessment could be made thereon if at the time of the assessment it had become divided, because at that point of time there was no undivided family in existence which could be taxed, though when the income was received in the year of account the family was joint. Nor could the individual members of the family be taxed in respe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Swaminathan Chettiar [1947] 15 I.T.R. 430 is as follows: Nor is it correct to say that the family should be deemed to continue undivided till the date of the Income-tax Officer's order under the section. Where an order is made accepting the portion alleged by the assessee the family must be regarded as having become disrupted on the date of partition as put forward by the assessee. In the present case, therefore, when the notice under section 34 was issued to the assessee on the 6th July, 1942, the family must be taken to have ceased to exist though the partition which was put forward as having taken place on the 21st January, 1940, was accepted only on the 17th August, 1942. Exception is taken to the first sentence in the above passage on the argument that sub-section (3) contemplates an order being made recognising the partition and that being so, there is nothing incorrect in saying that the family should be deemed to continue undivided till the date of the Income-tax Officer's order under the section . There is some force in this argument of Sri Kondaiah. The wording of that sentence may not be quite appropriate. But what the learned judges intended to pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the family can be said to be disrupted. We do not think that we can assent to this view. It is true that so long as no order is passed under section 25A the family will be deemed to be joint. But when that order gives recognition to the partition with reference to a particular date, by a legal fiction, the order must be deemed to have been made on that date. To hold it otherwise would be to ignore the operation of the order recognising the partition from an anterior date. The order in question has introduced the fiction that it was made on November 2, 1946. Therefore, for all legal purposes, it must be deemed to have been made on the date from which it was intended to take effect. The department, having chosen to give effect to the order recognising the partition from an anterior date, has to follow the consequences that flow from it. The proposition that a statute which is to have retrospective operation will be deemed to have been on the statute book on the date on which it has to take effect with all the consequences incidental to it is supported by authority. To borrow the picturesque language of Lord Asquith of Bishopstone in East End Dwellings Co. Ltd. v. Finsbury Bor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t open to the assessees to attack the assessments, since the joint family is to be the unit for purposes of assessments. Though an order is passed under section 25A recognising partition, such an order does not affect the assessments as such. Apart from the language of the section itself, this is made clear in the following passage of the Supreme Court in Lakhmichand Baijnath v. Commissioner of Income-tax [1959] 35 I.T.R. 416; [1959] Suppl. 1 S.C.R. 415: What that tax is would depend on the assessment of income in proceedings taken under section 23, and an order under section 25A would have no effect on that assessment. It is, therefore, into open to the assessees to question the validity of the assessments and the only relief they could ask for is that of apportionment. In fact, it was stated by the learned counsel for the assessees that they could not challenge the assessments, the only relief they wanted being that apportionment of the tax should be made although there was joint and several liability. The only request that the assessees made was that the department should first proceed against the assets of the joint family and it is only when they could not realise th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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