MADHWA RAMACHANDRA MUTALIK Vs. AGRICULTURAL INCOME TAX OFFICER

JUDGEMENT

(1.) THE petitioner who was the karta of an undivided Hindu family consisting of himself and his five sons has challenged a proposition notice issued under s. 19(3) of the Karnataka Agrl. I.T. Act, 1957 (hereinafter referred to as "the Act") dated February 9, 1976, issued by the Agrl. ITO, Bijapur, in relation to the assessment for the assessment year 1973-74. THE said notice has been produced as Ex. E with the writ petition.

(2.) THERE was a partition between the members of the undivided Hindu family on June 12, 1972. An order had been made under s. 30 of the Act on April 22, 1974, accepting and recording that such a partition had taken place. The parties to the partition had been individually assessed by the Agrl. ITO under the provisions of the Act, but for the period up to the date of partition, no order of assessment had been passed. In those circumstances, the Agrl. ITO issued a notice to the petitioner calling upon him to produce the account books of the family in order to take action under s. 37 of the Act, i.e., to take proceedings for the rectification of a mistake apparent from the record. THERE were two such notices, one dated August 6, 1974 (Ex. A), and another dated February 11, 1975. The petitioner challenged the notice dated February 11, 1975, before this court in Writ Petition No. 1035 of 1975 (Madhwa Ramachandra Mutalik v. Agrl. ITO-see p. 249 infra). In the statement of objections filed on behalf of the Agrl. ITO, it had been admitted that in so far as the undivided family was concerned, no order of assessment had been made in respect of the income derived by it until the date of partition in relation to the assessment year 1973-74. This court quashed that notice observing that s. 37 of the Act would apply only for purposes of rectifying errors apparent on record an not for purposes of bringing to tax the income that had escaped assessment and, accordingly, the action proposed to be taken by the Agrl. ITO under s. 37 of the Act was untenable. The judgment of this court was made on August 22, 1975. Subsequent thereto, it transpires that the Agrl. ITO issued a notice under s. 36 of the Act and directed there petitioner to file a return and the petitioner filed a "nil" return. This was on the basis that no income had been received by the undivided Hindu family between April 1, 1972, and June 12, 1972, the date of partition among the members of the family. It appears that the Agrl. ITO discussed the matter with the petitioner as well as his representative more than once and then caused the issue of the notice impugned in this writ petition. In the notice itself the substance of the discussion that had taken place and the contentions put forth on behalf of the petitioner were mentioned. It has been admitted that there was a partition among the members of the family on June 12, 1972, and the harvesting from the agricultural lands had been made from October, 1972, to February, 1973, after the partition was effected. The Agrl. ITO expressed himself that he was not prepared to accept the contentions put forth on behalf of the petitioner and the final portion of the notice is as follows :

(3.) IN view of the admitted facts that the harvesting was only several months subsequent to the partition, and there being no other material on record to show that the HUF was in receipt of any income from the agricultural lands up to the date of partition, the proposition notice (Ex. E) is manifestly illegal. Accordingly, it is liable to be quashed and is hereby quashed. The petitioner will have his costs in this petition. Advocate's fee is Rs. 250.