9911796707
TMI Blog1998 (3) TMI 130X X X X Extracts X X X X X X X X Extracts X X X X ..... R. S. Chidambaram [1994] 209 ITR 531 (Ker) ; [1993] KLJ (Tax Cases) 576, would require reconsideration in the light of the decisions of the Supreme Court in Gowli Buddanna v. CIT [1966] 60 ITR 293 ; N. V. Narendranath v. CWT [1969] 74 ITR 190 and Surjit Lal Chhabda v. CIT [1975] 101 ITR 776, the above petitions were referred by a Bench for consideration of a larger Bench. These original petitions have come up for our consideration on such reference. The petitioners are the legal representatives of the late Koloor Nanjappa, an assessee, under the Agricultural Income-tax Act, 1950. The relevant assessment years are 1983-84, 1986-87 and 1987-88. The assessee filed returns claiming the status of tenants-in-common along with his wife and daughter. The parties are following the Mitakshara school of Hindu law. The assessee obtained properties, income from which is sought to be assessed, under a partition between himself, his father and father's brother. The assessee had no sons. The contention raised by the assessee that consequent upon the coming into force of the Kerala joint Hindu Family System (Abolition) Act, 1975, himself, his wife and daughter should be treated as tenants-in-com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned by the Mitakshara law. Admittedly, the original assessee belonged to an Hindu undivided family governed by the Mitakshara law and the properties income from which is proposed to be assessed under the Agricultural Income-tax Act, 1950, were obtained by him under a partition between himself, his father and father's brother. At the commencement of the Act the original assessee was the sole co-parcener. Section 4 of the above Act reads as follows: "4. Total agricultural income.--(1) Subject to the provisions of this Act, the total agricultural income of any previous year of any person comprises all agricultural income derived from land situated within the State and received by him within or without the State, but does not include-- (a) any agricultural income derived from land situated without the State ; (b) any agricultural income derived from property held under trust wholly for charitable or religious purposes, to the extent to which such income is applied to such purposes in the State ; (c) any agricultural income derived from property held under trust in part only for such purposes, to the extent to which such income is applied to such purposes in the State ; (2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I.T. v. R. S. Chidambaram [1994] 209 ITR 531 ; [1993] KLJ (Tax Cases) 576 is in support of the contention raised by the Revenue. In the above mentioned case also the assessee was the sole co-parcener when the Act came into force. He contended that he and his wife would form a joint family and by operation of section 4(2) of the Act his wife is entitled to one-half share and the assessee can be assessed only for the other half of the property as tenants-in-common. This court took the view that the property allotted to the assessee in the partition between himself and his only son, with no other male member in the joint family will be his separate property. He could deal with it in any way he likes. It can again assume the character of joint family property only if a son is born subsequently or an adoption is made. The assessee's wife is not entitled to any share in the property when the Act came into force on December 1, 1976. She had no claim for partition of the property held by the assessee. Under these circumstances, there is no question of the assessee and his wife holding the property as tenants-in-common by applying section 4(2) of the Act. Learned counsel for the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. In C. Krishna Prasad v. CIT [1974] 97 ITR 493 (SC), the question which came up for consideration was whether an. unmarried male Hindu on partition of a joint Hindu family can be assessed in the status of a Hindu undivided family, where no other person besides him is a member of the alleged family. It was held that section 2(31) of the Income-tax Act, 1961, treats a Hindu undivided family as an entity distinct and different from an individual and the expression "Hindu undivided family" in the Income-tax Act is used in the sense in which a Hindu joint family is understood under the various schools of Hindu law. Therefore, assessment in the status of a Hindu undivided family can be made only when there are two or more members of the Hindu undivided family. In Surjit Lal Chhabda v. CIT [1975] 101 ITR 776 (SC) also the question considered was under section 3 of the Indian Income-tax Act, 1922. It was held that the expression Hindu undivided family under the Income-tax Act is not synonymous with Hindu coparcenary and, therefore, a Hindu undivided family with one male member and other female members can be treated as a taxable unit. In the decision of the Andhra Pradesh High Court in A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tments, to the extent they apply to the whole or any part of the State of Kerala : "1. The Madras Marumakkathayam Act, 1932 (XXII of 1933) 2. The Madras Aliyasanthana Act, 1949 (IX of 1949) 3. The Travancore Nayar Act, II of 1100 ; 4. The Travancore Ezhava Act, III of 1100 5. The Nanjinad Vellala Act of 1101 (VI of 1101) 6. The Travancore Kshatriya Act of 1108 (VII of 1108) 7. The Travancore Krishnavaka Marumakkathayee Act (VII of 1115); 8. The Cochin Thiyya Act, VIII of 1107; 9. The Cochin Makkathayam Thiyya Act (XVII of 1115); 10. The Cochin Nayar Act (XXIX of 1113) ; 11. The Cochin Marumakkathayam Act (XXXIII of 1113); 12. The Kerala Nambudiri Act, 1958 (27 of 1958)." The effect of sub-section (1) and sub-section (2) of section 4, according to us, is only immediate crystallization of existing rights, as if a partition had taken place among all the members of the undivided Hindu family. While sub-section (1) deals with the right of co-parceners in the coparcenary property, the proviso thereto covers the members of the undivided family having the right to maintenance, or the right to marriage or funeral expenses or right to residence. In spite of the disr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by tenancies in common ; (ii) among the Nambudiries all male and female members of the illom do become co-owners as on a given date each taking an equal share on a per capita basis ; and (iii) among the Hindus governed by the Mitakshara law, all members of the joint family who are entitled to shares if a partition takes place on a given date be co-owners, their shares being what they would be entitled to on such a partition." A revised draft bill was also proposed by the Commission in its second report and as mentioned earlier, the Bill as introduced in the Kerala Assembly was on the lines of the revised Bill prepared by the law commission. The relevant portion of the Statement of Objects and Reasons as quoted above would clearly show that the Legislature had no intention to carve out a special class from the Hindus governed by the Mitakshara law as an undivided Hindu family without co-parceners or coparcenary property. For the purpose of understanding the background in which the legislation was introduced, it is permissible to look into the Statement of Objects and Reasons of the Bill. So also, the Notes on Clauses appended to the Statement of Objects and Reasons are permiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned portion was necessary, since there are limitations and restrictions in the matter of claiming partition for the members of the tarwad or tavazhi coming under the first category of the definition clause under section 2 of the Act. For example, section 33 of the Travancore Nair Act provides that subject to the provisions of sections 34, 35 and 36 every adult member of a tarwad shall be entitled to claim his or her share of the properties of the tarwad. Section 34 provides that no member of a tarwad can claim partition during the life time of female ascendant without her consent. The conditions under which the partition could be allowed during the life time of female ascendant are also provided under section 34. Section 35 provides that an adult member cannot be allowed to divide from minors. By virtue of the provisions contained under section 36 every female member who claims to get a share of the tarwad properties shall also claim and shall also be entitled to get the shares of her minor children in such properties. Similarly, there are restrictions regarding the claim for partition under sections 28 to 31 of the Travancore Ezhava Act also. It is under these circumstances, the w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Hindu Law by S. V. Gupte. It was therefore held that the assessee who obtained the property in a partition was holding the same as separate property on the day when the Act came into force and entire income should be assessed only in his hands as individual. Even though reliance was placed by the assessee in that case on the decisions of the Supreme Court in Gowli Buddanna v. CIT [1966] 60 ITR 293 ; N. V Narendranath v. CWT [1969] 74 ITR 190 ; and Surjit Lal Chhabda v. CIT [1975] 101 ITR 776, the learned judges took the view that those decisions are not applicable to the facts of the case. We find no reason to disagree with the above considered view taken by a Bench of this court. The questions of law sought to be referred for opinion of this court are as follows : "(i) Whether, on the facts and in the circumstances of the case, was the Deputy Commissioner justified in holding that the assignment of status as tenants-in-common with 3 members consisting of the assessee, his wife and daughter is irregular in view of the statutory disruption of joint family status and a per capita partition of the joint family property ? (ii) Whether, on the facts and in the circumstances of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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