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TMI Blog1996 (3) TMI 30X X X X Extracts X X X X X X X X Extracts X X X X ..... idual ', as has been done by the authorities under the statute or in the status of tenants-in-common as contended by the assessee. For the assessment years 1980-81 to 1983-84, in respect of the income derived from the properties standing in the name of the assessee and his minor son, the assessee claimed before the assessing authority that he should be assessed in the status of tenants-in-common. The brief facts necessary for considering the said question are as follows : The assessee, Sri B. G. Narayana Bhat, originally was a member of a Hindu undivided family of which his father, the late Sankaranarayana Bhat, was the karta who was assessed till 1970-71 in file under section 28 of the Act. The family was partitioned on January 9, 1971, between his father and his brothers. The assessee begot a son in 1974. The assessee and his son thereafter constituted a smaller Hindu undivided family, jointly purchased properties in 1979 and since the joint family system was abolished with effect from December 1976, as per the Act 30 of 1976, they have to be treated as tenants-in-common. According to the assessee, since these properties belonged to the assessee and his son in their own indiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -acquisitions of the assessee himself. The status will, therefore, be assigned as ' individual '. It is also evident from the first appellate orders that interference was not made only for want of evidence for the claim. Before us also the appellant did not bring in any evidence or document so as to enable us to interfere on the point. Though the appellant relied on the principles of the case of Gopal Raja [1985] 155 ITR 434 ; [1983] KLT 761, its applicability could not be tested in the absence of details of source and proof for the raising of purchase of consideration. In the circumstances of the case, we only confirm the status assigned by the assessing authority." The Appellate Tribunal also confirmed the orders of the assessing authority and the first appellate authority on the ground that there is no evidence to show that the minor had funds for the acquisition of the said property. It was also observed that the assessee has not chosen to produce any evidence regarding the source for the acquisition even before the Tribunal. It is in these circumstances that the Appellate Tribunal observed that though the assessee had relied on the principles of the case of Gopal Raja [1985] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed as above. The assessing authority is directed to pass on the benefits of the above rectification in the appellant's respective assessments. " It is against this finding of the Appellate Tribunal that the Revenue has filed revision petitions, T. R. C. Nos. 241, 251, 252 and 255 of 1992. In order to test the correctness of the decision rendered by the Appellate Tribunal in the rectification applications, it is necessary to refer to section 36 of the Agricultural Income-tax Act, 1950. The relevant portion reads as follows : " 36. Rectification of mistake. --- (1) The authority which passed an order on appeal or revision may at any time within three years from the date of such order passed by him on appeal or in revision, and the Agricultural Income-tax Officer may at any time within three years from the date of any assessment or refund order passed by him, of his own motion, rectify any mistake apparent from the record of the appeal, revision, assessment or refund, as the case may be, and shall within the like period rectify any such mistake which has been brought to his notice by an assessee : Provided that no such rectification shall be made having the effect of enhancing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rwise than for adequate consideration. Learned counsel appearing for the assessee vehemently contended before us that section 9(2)(a)(iv) of the Act has application only in a case where there is a transfer of properties to or in favour of the minor directly or indirectly by the assessee otherwise than for adequate consideration and that in this case the assessee had not transferred any of his assets directly or indirectly in favour of the minor son. In any way, the properties which are said to have been purchased in the name of the minor are not properties which belong to the assessee or over which he has got any right whatsoever. On these, it was further contended by learned counsel appearing for the assessee that the decision of this court in Gopal Raja's case [1985] 155 ITR 434 squarely applied and that the Tribunal overlooked the significance of this decision, which according to the assessee is a mistake committed by the Tribunal apparent from the record. We have gone through the decision in Gopal Raja's case [1985] 155 ITR 434 (Ker) minutely and we find that the said decision is of no help to the assessee. That was a case where the assessee had purchased 2.50 acres and 2. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect that the assessee has not established that the minor had an independent source of income to acquire the said properties, the assessing authority was justified in invoking the provisions of section 9(2)(a)(iv) of the Act. For arriving at the said conclusion, we had also relied on an earlier decision of a Bench of this court in P. M. Paily Pillai v. State of Kerala [1981] 129 ITR 197 and also the decision of the Supreme Court in CIT v. Prem Bhai Parekh [1970] 77 ITR 27. The decision rendered in I. T. R. No. 39 of 1990 (Sunny Kuriakose v. Commercial Agrl. I T. [1996] 221 ITR 12 (Ker)) is again followed by this Bench in the judgment dated March 6, 1996, in A. I. T. R. Nos. 48 to 52 of 1991 (N. B. Bavamooppan v. Commissioner of Agrl. I . T. [1997] 227 ITR 610). The decisions rendered by this Bench in I. T. R. Nos. 39 of 1990 Sunny Kuriakose v. Commissioner of Agrl. I T. [1996] 221 ITR 12 (Ker), and AITR Nos. 48 to 52 of 1991, N. B. Bavamooppan v. Commissioner of Agrl. I T. [1997] 227 ITR 610 and the principles discussed therein squarely apply to the facts of the present case also. Though the assessee had put forward a case of tenants-in-common, he was not able to substantiate the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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