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TMI Blog1984 (6) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... ncome-tax Act, 1950, to set aside the said orders of the Agricultural Income-tax Officer for the two assessment years and to pass revised assessments for those years in the name of the eldest brother in the status of a Hindu undivided family. In reply to the showcause notice dated February 12, 1976, the petitioners filed their objections dated March 29, 1976, inter alia, contending that the suo motu revisional proceedings initiated under section 34 of the Travancore-Cochin Agricultural Income-tax Act, 1950, is not sustainable in law as the said Act had been repealed by the Tamil Nadu Act 18 of 1972, with effect from April 1, 1972, that thereafter, the Tamil Nadu Act alone applies, that under the Tamil Nadu Act, no suo motu proceedings can be preferred after a lapse of three years after the date of the respective assessment orders, that, therefore, the suo motu revisional proceedings are not maintainable, that whether the petitioners had got divided in status is a question of fact and that having been accepted by the assessing authority, the status cannot be changed from tenants-in-common to Hindu undivided family. The Commissioner, by his order dated November 8, 1976, rejected al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , R. Eswara Iyer, being the eldest brother, should be assessed as Hindu undivided family, for the properties in question have always been properties belonging to the joint family and, therefore, they should be assessed as such. He, therefore, caused a show-cause notice to be issued as to why the assessment should not be modified. The main contention of the petitioner is that no suo motu revisional proceedings could be initiated in respect of the assessment years 1970-71 and 1971-72 beyond the three years period mentioned in section 34 of the Tamil Nadu Act and that any suo motu power should be exercised before the expiry of the three years from the date of both the assessment orders as per the Tamil Nadu Agricultural Income-tax Act which has replaced the Travancore-Cochin Act in so far as it relates to the transferred areas. It is not in dispute that section 34 of the Travancore-Cochin Act did not provide for any time-limit before which the assessment has to be completed. It is also common ground that the lands in question are situated in Puliyarai and Shencottah villages which are within the transferred areas under the provisions of the States Re-organisation Act, 1956. In respe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ochin Act should be taken to be saved in respect of the assessments made under that Act by virtue of the specific saving provision under section 9. Thus, the substantial question to be considered on this aspect of the case is as to the scope and ambit of section 9(1)(d) which has been invoked by the Commissioner of Agricultural Income-tax to initiate revisional proceedings under the Tamil Nadu Agricultural Income-tax Act which has been now made applicable to the transferred territories. Section 9(1)(d) of the Tamil Nadu Act 18 of 1972 relied on for invoking the power under section 34 of the Travancore-Cochin Act is as follows: 9. Savings.-(1) The repeal by section 8 of any corresponding existing law shall not affect . ...... (d) any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, fine, penalty, forfeiture, or punishment as aforesaid ; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such fine, penalty, forfeiture or punishment, may be imposed as if this Act had not been passed." The assessees' contention is that section 9(1)(d) can be applied only in cases where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assess under rule 17 of the Rules made under the repealed Act had not expired on the date when the repealing Act came into force, that it was the new Act that would apply and, therefore, the enlarged period provided for under the new Act that would apply and the proceedings for reassessment were within the time prescribed under the new Act. However, the said decision of the Full Bench is based on the fact that before the time provided under the old Act to make any reassessment could expire, the new Act giving a larger period of limitation had come into force and, therefore, the assessing authority has the power to revise the assessment within the enlarged period provided under the new Act. The facts in that case are not on all fours with the facts of this case. It is seen that, under identical circumstances, the Andhra Pradesh High Court in S.L. Ramanatham v. Commissioner of Commercial Taxes [1969] 23 STC 249, had held that in view of the saving clause contained in the repealing Act, the repealed Act could be operative in respect of the rights and liabilities that accrue under that Act. In that case, the assessee submitted his monthly returns for the year ending March 31, 1957, u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner proposed to revise the assessment suo Motu under section 22 of the Act of 1946. When that proposal was challenged on the ground that it was beyond the time prescribed under the Bombay Sales Tax Act, 1959, the court held that as there was no prescribed time provided either under section 22 of the Bombay Sales Tax Act, 1946, or under section 31 of the Bombay Sales Tax Act, 1953, the Deputy Commissioner was competent to initiate suo motu revisional proceedings, notwithstanding the fact that section 57 of the Bombay Sales Tax Act, 1959, had prescribed a period of five years from the date of the order sought to be revised . The Supreme Court, in support of its conclusion, relied on section 77 of the said Act of 1959 which had saved the operation of the Acts of 1947 and 1953 for purposes mentioned in that section and that those purposes included levy, assessment, reassessment and collection of sales tax, so that the proceeding against the assessee which had been initiated under the Act of 1946 continued to be governed by the provisions of that Act. The court also referred to sections 7(c) and 7(e) of the Bombay General Clauses Act, 1904. In the case before us, section 9(1)(d) corresp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es then contends that in any event the decision of the Commissioner of Agricultural Income-tax on merits is quite untenable. According to the learned counsel, the petitioners having chosen to file the returns in the status of tenants-in-common, they cannot be assessed in the status of members of a Hindu undivided family and that the filing of all the returns in the status of tenants-in-common should be taken as an act amounting to declaration of division in status. However, on the facts of this case, it is not possible to accept the contention of the learned counsel. The properties were originally held by the petitioners' father as ancestral and after his death, they continued to be ancestral in the hands of the petitioners. It is not claimed that there has been a partition between the brothers at any time. Therefore, the joint family should be taken to continue until an actual division takes place. According to the petitioners' learned counsel, a division in status is sufficient to treat them as divided members of a Hindu undivided family even though there has been no partition by metes and bounds. Admittedly, the properties in this case are held and enjoyed in common. From the me ..... X X X X Extracts X X X X X X X X Extracts X X X X
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