PORINCHU VARIATHU Vs. STATE OF KERALA

JUDGEMENT

(1.) THIS reference has been made under section 113(1)of the Travancore Income -tax Act No.23 of 1121.The assessee has claimed that his brother Chacko and himself were the tenants -in -common of some agricultural lands standing in the name of the assessee,but the plea has not been accepted by the lower tribunals.During the previous assessments under Act No.23 of 1121,the assessee has been assessed as if he alone were entitled to the income.But on June 28,1949 the then Government issued a notification,ROC.293 of 1949,providing that where the property be held by persons as tenants -in -common the assessment should be at the rate applicable to the share of the agricultural income due to each tenant -in -common.Thereafter the assessee has claimed that he should be assessed on his shares of the income from the properties,standing in his name,because his brother and himself were their tenants -in -common.He has produced docu­ments before the Assistant Commissioner of Agricultural Income -tax and Sales -Tax,Moovattupuzha,but the afore­said assessing authority has repelled the contention and held that the notification relied upon was not applicable.

(2.) AN appeal was filed before the Deputy Commissioner of Agricultural Income -tax and Sales -tax and an affidavit of August 29,1951 was also filed in support of the plea of the properties standing in the name of the assessee being held by him as tenants -in -common with his brother.The Deputy Commissioner has,however,confirmed the assessment order,and in his order made no reference either to the affidavit filed before him by the assessee,or the documents produced before the lower assessing authority.

(3.) AN application was filed under section 113(1)of the Act and the Tribunal had referred three questions to the High Court.The first covered the objection by the assessee about assessments under the Travancore Income -tax Act being invalid in view of the Indian Finance Act of 1950.We need not deal in detail with it,for the question has been already answered against the assessee by the Travancore -Cochin High Court.The other two questions then referred by the Tribunal were as follows: "( 1)Whether the assessee has discharged the burden with regard to proving that himself and his brother are holding the proper­ties in their separate and their joint names as tenants -in -common. (2)Whether the Government Notification ROC.No.293 of 1949,dated 28th June 1949 is not applicable in the case of the assessee."