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TMI Blog1971 (8) TMI 90X X X X Extracts X X X X X X X X Extracts X X X X ..... ry which by no means is complimentary to the department. The common respondent in both these appeals moved the High Court of Kerala under article 226 of the Constitution praying that the appellant herein may be prohibited from taking further proceeddings for assessing him as the karta of Poomulli Mana to agricultural income-tax for the assessment year 1961-62. The respondent was the karta of a Namboodiri family known as Poomulli Mana till March 30, 1958. The Namboodiris in the Malabar District of the Kerala State were previously governed by the Madras Nambudiri Act, 1932. Now they are governed by the Kerala Nambudiri Act, 1958. The respondent's family owned large tracts of lands both in Malabar District which was a part of the Madras State till November 1, 1956, as well as in the erstwhile Travancore and Cochin States. Under the States Reorganization Act, 1954, the new State of Kerala was formed consisting of the former Malabar District of the State of Madras as well as the former Travancore-Cochin State. The new State of Kerala came into being on November 1, 1956. Thereafter, the Travancore Cohin Agriculcultural Income-tax Act, 1950, was extended to the former Malabar District ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17, 1963. Section 29 of the Agricultural Income-tax Act, 1950, was amended by the Kerala Legislature by Act No. 12 of 1964. We shall now set out section 29 as it stood before its amendment in 1964 as well as the amended section. Section 29 of the Act (before the amendment by Act No. 12 of 1964) read thus : " 29. (1) Whereat the time of making an assessment under section 18, it is claimed by or on behalf of any member of a Hindu undivided family or Aliyasanthana family or branch or Marumakkathayam tarwad hitherto assessed as undivided that a partition has taken place among the members or groups of members of such family or tarwad the Agricultural Income-tax Officer shall make such inquiry thereinto as he may think fit, and if he is satisfied that the joint family property has been partitioned among the various members or groups of members in definite portions he shall record an order to that effect : Provided that no such order shall be recorded until notice of the inquiry has been served on all the adult members of the family or tarwad entitled to the property as far as may be practicable or in such other manner as may be prescribed. (2) Where such an order has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lf of the family as such, as if no partition had taken place, and eachmember or group of members shall, in addition to any agricultural income-tax for which he or it may be separately liable, and notwithstanding anything contained in clause (a) of sub-section (1) of section 10, be liable for a share of the tax on the incomes so assessed according to the portion of the family property allotted to him or it and the Agricultural Income-tax Officer shall make assessments accordingly on the various members and groups of members in accordance with the provisions of section 18 : Provided that all the members and groups of members whose family property has been partitioned shall be liable jointly and severally for the tax on the total agricultural income received by or on behalf of the family as such up to the date of partition. (3) Where such an order has not been passed in respect of a family hitherto assessed as a Hindu undivided family or which is being assessed for the first time as a Hindu undivided family, such family shall be deemed, for the purpose of this Act, to continue to be a Hindu undivided family. " The amended provision was given retrospective effect with effect f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grounds. The department contended that, in view of the amendment of section 29 of the Act by Act No. 12 of 1964, it was permissible for it to reassess the respondent as the karta of the family as no decision that the respondent's family is a divided family had been rendered by the Agricultural Income-tax Officer and, therefore, the family must be deemed to be an undivided family. The writ petition was heard by a Bench of three judges consisting of Mathew, Krishnamoorthy Iyer and Balakrishna Eradi JJ. By a majority (Krishnamoorthy Iyer and Eradi JJ.), the writ petition was allowed and the impugned notices were quashed. Mathew J. was of the opinion that the action taken by the department was permissible under section 29 of the Act as amended. Now turning to section 29 of the Act before its amendment, it corresponded with section 25A of the Indian Income-tax Act, 1922. The scope of section 25A of the Indian Income-tax Act, 1922, came up for consideration both before the Judicial Committee as well as before this court in various cases. It is sufficient if we refer to the decision of this court in Additional Income-tax Officer, Cuddappah v. A. Thimmayya. Therein this court conside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the deed is not in dispute. (ii) On January 18, 1960, on behalf of the Agricultural Income-tax Officer, it was conceded before the High Court that the respondent was liable to be taxed only as an " individual ". The implication of this concession was that the respondent's family was a divided family. (iii) Various attempts made by the department to assess the respondent as karta of his family even after the decision of the High Court on January 18, 1960, were frustrated by the orders of the High Court referred to earlier. (iv) And the respondent and the other members of his quondam family were assessed as " individuals " from 1958-1964. Those assessments had become final and tax levied on them had been paid. Section 3(1) is the charging section in the Act. That section reads : " Agricultural income-tax at the rate or rates specified in the Schedule to this Act shall be charged for each financial year in accordance with and subject to the provisions of this Act, on the total agricultural income of the previous year of every person. " " Person " is defined in section 2(m) as follows : " 'person' means any individual or association of individuals, owning or holding prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nor can it be said that the family was " being assessed for the first time as a Hindu undivided family ". As seen earlier that the family was sought to be assessed as a Hindu undivided family earlier but ultimately the assessing authority had to assess the members of that family as members of a divided family. In other words, it had held the family to be a divided one. Such a family cannot be considered as being " assessed for the first time as a Hindu undivided family ". The expression " which (meaning family) is being assessed for the first time as a Hindu undivided family " presupposes the existence of the family. That is a condition precedent. Section 29(1) does not permit the assessing authority to create a family by rejoining the divided parts or otherwise. If that is not so, families which had been divided years back can be again resurrected by the assessing authorities for the purpose of the Act. The family referred to in section 29(1) is a family known to law and not a deemed family. The amendment of section 29 has introduced considerable confusion into that section. At the time of the assessment either there is a family or there is no family. If there is a family its liab ..... X X X X Extracts X X X X X X X X Extracts X X X X
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