KALYANI AMMA Vs. INSPECTING ASST CAIT

JUDGEMENT

(1.) This is an appeal from an order dismissing in limine a petition filed by the appellant under Art.226 of the Constitution. The prayers in the petition were:

(2.) The order, Ext. P 5, happened to be passed by the first respondent, the Inspecting Assistant Commissioner of Agricultural Income Tax (Special), Kozhikode in the following circumstances. The petitioner appellant and respondents 2 & 3 are members of a marumakkathayam tarwad consisting of eleven members of which the second respondent is the karnavan. The tarwad used to be assessed to agricultural income tax in past years. In 1958, a partition deed (Ext. P 1) was executed by the members of the tarwad, and for the assessment years 1959-60 and 1960-61 respondents 2 and 3 filed returns in respect of their shares in the properties on the basis of the partition deed. The Agricultural Income Tax Officer assessed the second respondent on this basis and as the third respondent had no assessable income he was not assessed at all. Exts. P 2 and P 3 are the copies of the assessment orders dated 3-10-1962 for the years 1959-60 and 1960-61 respectively. The second respondent preferred appeals to the Appellate Assistant Commissioner of Agricultural Income Tax, Cannanore, and the main point taken was that the order of assessment was bad in law, as the Agricultural income Tax Officer had not passed an order under S.29 of the Act, recognising the partition. It was argued in appeal that notwithstanding the execution of the partition deed, the tarwad remained undivided as the deed of partition had not come into effect. The Appellate Assistant Commissioner by order (Ext. P 4) set aside the orders of assessment & ordered fresh assessment after passing an order in accordance with law under S.29. Thereafter the cases were transferred to the first respondent who gave notice to all the members of the tarwad for an enquiry under S.29. The third respondent, a brother of the appellant, appeared and stated that notwithstanding the execution of the deed, the tarwad remained joint. Relying on the fact that respondents 2 and 3 had filed separate returns for two years and had produced the deed of partition claiming separate assessments and taking into consideration certain statements made by the second respondent, the first respondent held that the tarwad had become divided. It is this order which is sought to be quashed in this original petition. The petition was dismissed in limine, and the petitioner has preferred this appeal.

(3.) According to the appellant the first respondent had no jurisdiction to proceed with the enquiry under S.29 when the persons who claimed divided status withdrew the said claim. Another ground is that proceedings under S.29 are of a quasi judicial nature and that the first respondent was not justified in relying on statements made by the second respondent before notices were issued to all the members of the tarwad.