SHANKARE GOWDA A M Vs. AGRL ITO

JUDGEMENT

(1.) IN this petition for a writ of certiorari, the petitioner calls in question an order passed by the Jt. Commr. of Agrl. IT, Bangalore, dt. 27th March, 1989, in suo motu revisional proceedings, whereby he has set aside the assessment order made by the Agrl. ITO, Chickmagalur, and directed him to redo the same after determining the status of the assessee as HUF. The order dt. 15th December, 1989, passed by the Agrl. ITO in pursuance of the above direction assessing the petitioner as an HUF has also been assailed.

(2.) THE petitioner, his brother, Sri A. M. Manjunath, and his mother, Smt. Puttamma, were assessed to Agrl. IT under the Karnataka Agrl. IT Act, 1957, as an HUF with Sri A. Malegowda as its Karta. For the asst. yr. 1981-82, the Karta of the HUF filed a return of income dt. 6th February, 1992, declaring an income of Rs. 91,621.20 in their capacity as tenants-in-common. Reliance in support was placed upon an agreement dt. 5th March, 1980, executed by the members of the family, according to which they were to hold the immovable property earlier owned by the HUF as tenants-in-common with effect from 1st April, 1980. Accepting the validity of the agreement, the Agrl. ITO, Chickmagalur, passed an assessment order dt. 22nd January, 1983, determining the status of the members of the HUF as tenants-in-common and apportioning the net agricultural income among them in accordance with their respective shares. THE Jt. Commr. of Agrl. IT, Bangalore, was, however, of the view that the order passed by the assessing authority was erroneous and prejudicial to the interests of the Revenue. He, therefore, issued a show cause notice calling upon the members of the HUF to show cause why the Agrl. ITO's order may not be set aside with a direction to him to redo the assessment after determining their status as HUF. Several objections were raised against the said notice by the petitioner and others, which were considered by the Jt. Commr. in his order dt. 27th March, 1989, but found untenable. THE Jt. Commr. held that since the petitioner had been assessed as an HUF in the previous years any claim suggesting partition of the said status had to be enquired into in terms of s. 30(1) of the Act before making an order of assessment. No such enquiry having been held by the Agrl. ITO the acceptance of the status of the family members as tenants-in-common by him was declared by him to be legally unsustainable. THE Jt. Commr. accordingly set aside the order passed by the Agrl. ITO and directed him to redo the same after determining the status of the assessee as an HUF. Consequent upon the said order, the Agrl. ITO issued a notice calling upon the assessee as to why the assessment be not concluded afresh by treating the assessee's status as an undivided family. In response, the assessee pointed out that it had filed the present writ petition in this Court challenging the order passed by the Jt. Commr. Since, however, the assessee did not produce any order of stay from this Court within the extended period granted to it for the purpose, the Agrl. ITO proceeded to complete the assessment by treating the assessee as an HUF. Aggrieved, the petitioner has filed the present writ petition assailing the validity of the order passed by the Jt. Commr. as also that passed by the Agrl. ITO.

(3.) IN the totality of the above circumstances, therefore, the order passed by the Agrl. ITO as also that passed by the Jt. Commr. to the extent the same declares the status of the assessee to be an HUF shall have to be quashed with a direction to the former to redo the assessment in accordance with law after holding an enquiry under s. 30(1) of the Act.