9911796707
TMI Blog1997 (3) TMI 24X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 212 of 1985 relates to the assessment year 1978-79 ; T. C. No. 213 of 1985 relates to the assessment year 1974-75 ; T. C. No. 285 of 1985 relates to the assessment year 1977-78 ; T. C. No. 368 of 1985 relates to the assessment year 1975-76 ; and T. C. No. 374 of 1985 relates to the assessment year 1976-77. T. C. No. 426 of 1985 relates to the assessment year 1978-79 ; T. C. No. 427 of 1985 relates to the assessment year 1977-78 and T. C. No. 428 of 1985 relates to the assessment year 1976-77. Since a common question is involved in all these tax cases (revisions) they are all disposed of together. The following facts are necessary to understand the point involved. The above said S. P. Bhansali was a partner having a particular share in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... five assessment years setting aside those assessment orders and directing the Agricultural Income-tax Officer to pass fresh assessment orders in the hands of the said assessee as an individual, pursuant to the show-cause notice by clubbing the alleged income of the said assessee from all the abovesaid three firms. It is against the said order of the Commissioner, these five revisions have been preferred by the abovesaid S. P. Bhansali. The other three tax cases also, viz., T. C. Nos. 426 to 428 of 1985, are against similar orders passed by the Commissioner under section 34 of the Act, dated October 22, 1982. There also learned counsel for the petitioner submitted that there was blending in the year 1969 by the assessee, M. K. Bhansali, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able to conclude that there is any justification for the abovesaid clubbing, despite the rival arguments advanced by learned counsel for the Revenue. The material portions in the impugned order in the case of S. P. Bhansali are as follows : "This is a case where the assessment was made in the status of the Hindu undivided family and individual for one and the same person for the assessment years 1975-76 to 1978-79 and the income derived from the three firms was not clubbed together and assessment was not also made as per section 2(x) of the Act. The provisions of section 2(x) read with section 9 and section 10(2) of the Act are clear that the total agricultural income includes incomes specified under section 9 and all receipts described ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specified in sub-section (2) of section 10." Now it is clear from the abovesaid definition that income spoken to under section 9 would also come within this definition under section 2(x). Section 9(1) runs as follows : "In computing the total agricultural income of an assessee, all agricultural income arising to any person by virtue of a settlement or disposition, whether revocable or not, and whether effected before or after the commencement of this Act, from assets remaining the property of the settlor or disponer shall be deemed to be the agricultural income of the settlor or disponer, and all agricultural income arising to any person by virtue of a revocable transfer of assets shall be deemed to be the agricultural income of the tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not at all apply since the abovesaid blending will not be a transfer spoken to in section 9(2) as held in State of Tamil Nadu v. A. Sadhanandam [1978] 113 ITR 453 (Mad), following the decision in Goli Eswariah v. CGT [1970] 76 ITR 675 (SC) which related to a case under the Gift-tax Act, 1958. In Goli Eswariah v. CGT [1970] 76 ITR 675, the Supreme Court has held that such blending resorted to by one coparcener of the family cannot be termed "transfer" as defined under the Gift-tax Act. Since such blending takes place pursuant to an unilateral declaration only and it is not a bilateral transaction. Learned counsel for the respondent also did not support the impugned orders, invoking section 9(2) of the Act. Then, coming to section 9(1) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds of the Hindu undivided family any coparcener of the family cannot be once again charged to tax in respect of his share of income from the said family. That apart, in section 2(q) of the Act, even while defining the term "person" among the assessable entities, individual as well as the Hindu Mithakshara family are mentioned. Therefore, there is no justification at all for the Commissioner invoking section 34 and seeking to resort to the abovesaid clubbing. Further we must also point out that there is a confused thinking on the part of the Commissioner. This is evident from the passage extracted above from the impugned order. He proceeds in the said passage as if the assessee in each of these two sets of cases is having two different s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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