GOWRAMMA S B Vs. AGRICULTURAL INCOME TAX OFFICER

JUDGEMENT

(1.) THE petitioner, Srimathi S. B. Gowramma, is one of the partners of the firm by name "Punniah Group of Estates, Sunticoppa", and is an assessee under the Mysore Agrl. IT Act, 1957, hereinafter called "the Act." During the asst. yr. 1967- 68, there were five partners in the said firm, and one of them was a minor son of the petitioner. THE petitioner submitted a return of income under the Act for the asst. yr. 1967-68, in the status of an "individual". In the said return she included not only her share of the income from the firm but also the share of her minor son. On the basis of the said return, the respondent, Agrl. ITO, Coorg District, Mercara, made an assessment order on October 31, 1968, by which he added the income of the petitioner's minor son to the income of the petitioner and assessed the tax on the said total income. On January 22, 1969, the petitioner made an application to the respondent under s. 37(2)(b) of the Act for rectification of the assessment order by restricting the assessment made on the petitioner to her income only, since under s. 11 (2) of the Act, the income of the minor son could not be added to the income of the petitioner. THE respondent rejected that application by his order dated February 18, 1969, on the ground that there is no error apparent on the face of the record and the assessment order assessing the income of the petitioner with the income of her minor son was made since a single return in Form III had been filed. Aggrieved by the said order, the petitioner has approached this Court for relief under Art. 226 of the Constitution of India.

(2.) SEC. 11(2) of the Act is in pari materia with s. 16(3) of the Indian IT Act, 1922. The Supreme Court in CIT vs. Sodra Devi (1957) 32 ITR 615 (SC) has held that :

(3.) FOR the reasons stated above, the assessment order dated October 31, 1968, made by the respondent for the asst. yr. 1967- 78 is liable to be quashed in so far as it takes in the income of the petitioner's minor son, S. B. Ganesh. The ITO has to recompute the tax on the income of the petitioner on the basis of the income already determined in the assessment order dated October 31, 1968, and issue a fresh demand notice. There will be an order accordingly. No costs.