MARIAM AYSHA Vs. COMMISSIONER OF AGRICULTURAL INCOME TAX

JUDGEMENT

(1.) THESE two writ petitions arising under the Madras Agrl. IT Act, 1955, are concerned with the asst. yrs. 1958 -59 and 1959 -60. One K. A. Mohammed Abubucker owned large extent of lands in Thanjavur District. He settled the said properties on his wife, the petitioner herein, and his two minor childern. It is not in dispute that the petitioner on her own and acting for her two minor children filed three independent applications for composition of the taxes under the provisions of the Act. But the Agrl. ITO, Mannargudi, assessed the petitioner under S. 34 of the Amending Act, 29 of 1958, by clubbing together the lands owned by her as settlee under the settlement deed as well as those secured by the two minor children under the very same deed. The officer based his order on the consent said to have been given by the petitioner's husband to make such a consolidated order, Some time later, the petitioner when she discovered the mistake, applied to the appropriate authority for rectification of the final order of assessment, and desired that her liability should only be based on the income from the lands owned by her. The petitioner's contention was that she never gave any authority to her husband for clubbing the properties as was done by the assessing authority or to express his consent thereto. The Agrl. ITO on the facts held that there was a valid consent. Veeraswami J., as he then was, while disposing of the Writ Petition No. 675 of 1962 filed by the petitioner challenging the order of the Agrl. ITO as above, observed thus : "It will be apparent from what has been stated above that the clubbing was done only with the consent of the petitioner, though it was conveyed through her husband."

(2.) ON appeal, the Division Bench stated as follows :

(3.) A fortiori it follows that if the petitioner has filed three independent composition applications, one in her own capacity as owner and the others in her capacity as the guardian of her two minor children, then she has approached the Revenue under S. 34 of the Amending Act of 1958, on the distinct ground that the three applications filed by her are separate and one has nothing to do with the other ; under S. 8(1), as already stated by me, the Revenue is obliged, if it is a normal case of assessment to deal with the income of the minors as income from an individual other than the mother, and the three applications in question would be dealt with separately, the one having no relation to the other. The position is not in any way different in a composition application. But in the instant case, on the strength of the consent given by the father or the husband of the petitioner, the holdings have been clubbed. That consent cannot give jurisdiction is an essential principle of law. The taxing authority can act only if there is a power under the statute to do so. Far from there being any power under the provisions of the Act to club such applications for composition, there appears to be an indication in the Act, though with reference to the normal provisions of assessment under S. 17, to separate such returns and assess them separately. If "A" satisfies both the capacities of an ordinary normal individual as well as that of a trustee or receiver or guardian and if the assessment is undertaken normally under S. 17, it appears to be that it is obligatory on the part of the Revenue to assess the income separately so that the income of the individual as well as the income of the receiver or guardian may be arrived at. This appears to be the principle underlying S. 8. Even while considering composition applications under S. 34 of the Amending Act of 1958, I do not think that any other rule need be applied on the principle of harmonious construction which is a salient principle of interpretation of a statute. Once the guardian or receiver or trustee voluntarily chooses to file a composition application, then the privilege he secures is relatable to the concession in the quantum of tax and he is not disentitled to the other statutory benefits available to him under the other provisions of the statute or under the common law.