PERIASWAMY GOUNDER T Vs. AGRICULTURAL INCOME TAX OFFICER

JUDGEMENT

(1.) THE petitioner was assessed under the Tamil Nadu Agricultural Income-tax Act, V of 1955, hereinafter referred to as the Act, for an extent of 26.43 ordinary acres from 1972-73 onwards under composition application basis. Subsequently, in 1977, the first respondent, on the premises that certain landed properties enjoyed commonly by the petitioner, his wife and his sons were omitted to be assessed at the hands of the petitioner, took action under s. 65A(3) read with s. 9(2) of the Act and issued a show-cause notice as to why these properties should not be clubbed and taxed treating the petitioner as "association of persons". THE petitioner did not respond to the notice and the first respondent passed a revised assessment order on September 24, 1977, for the years 1972-73 to 1976-77 treating the petitioner as "association of persons", clubbing the properties which stand in the names of his wife and his sons with those which stand in the name of the petitioner. As against this order of the first respondent, the petitioner preferred a revision to the second respondent, which has been rejected by the second respondent and the present writ petition is directed against the orders of the respondents.

(2.) ACCORDING to the petitioner, there was a partition on December 15, 1959, evidenced by a registered deed in the family and thereafter the extents acquired under the partition by the different shares are being enjoyed by them separately and even otherwise if the petitioner has been managing such extents, it would not amount to holding or enjoyment by an association of individuals, within the meaning of the Act. The factum of the partition is not being disputed by the respondents. The second respondent points out that the properties alleged to have been partitioned in 1959 are in common enjoyment and the members of the family are living under one roof. If in fact there has been a partition in the family, specific shares having been allotted to the individuals, the petitioner being in management of such extents for convenience sake, will not bring the situation within the mischief of being assessed as association of individuals. As pointed out by the Bench of this court in State of Madras v. S. Subramania Iyer [1966] 61 ITR 613, in order that persons owning lands may be assessed to tax as an "association of individuals", the essential requirement is that, as between themselves, they should have associated together and decided upon the common exploitation of the lands for their common benefit and the mere fact that all of them had appointed the same person as manager or given the lands on lease to the same person and the manager or lessee was jointly cultivating all the lands would not make the owners liable to be assessed as an "association of individuals". In the present case, apart from the properties allocated to the different sharers in the partition of 1959, the sharers themselves have come to acquire different extents subsequently. In A. M. C. Muthuvaithilingam Chettiar v. Government of Madras [1968] 69 ITR 330, another Bench of this court laid down the dictum as follows: