R ESWARA IYER Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) THESE tax cases are filed by four brothers who are assessees under the Tamil Nadu Agricultural Income-tax Act against the order of the Commissioner of Agricultural Income-tax, Board of Revenue, dated November 8, 1976, in relation to two assessment years For the assessment years 1970-.71 and 1971-.72, the petitioners claimed that they were holding the lands as tenants-in-common. The Agricultural Income-tax Officer accepted the claim and treating them as tenants-in-common, held that as their holdings are within the exemption limit, no tax was leviable by orders dated July 15, 1971, and June 22, 1972. However, the Commissioner of Agricultural Income-tax took the view that the petitioners have been wrongly assessed in the status of tenants-in-common and, therefore, initiated suo motu revisional proceedings under section 34 of the Travancore-Cochin Agricultural Income-tax Act, 1950, to set aside the said orders of the Agricultural Income-tax Officer for the two assessment years and to pass revised assessments for those years in the name of the eldest brother in the status of a Hindu undivided family. In reply to the showcause notice dated February 12, 1976, the petitioners filed their objections dated March 29, 1976, inter alia, contending that the suo motu revisional proceedings initiated under section 34 of the Travancore-Cochin Agricultural Income-tax Act, 1950, is not sustainable in law as the said Act had been repealed by the Tamil Nadu Act 18 of 1972, with effect from April 1, 1972, that thereafter, the Tamil Nadu Act alone applies, that under the Tamil Nadu Act, no suo motu proceedings can be preferred after a lapse of three years after the date of the respective assessment orders, that, therefore, the suo motu revisional proceedings are not maintainable, that whether the petitioners had got divided in status is a question of fact and that having been accepted by the assessing authority, the status cannot be changed from tenants-in-common to Hindu undivided familyThe Commissioner, by his order dated November 8, 1976, rejected all the contentions of the petitioners stating that the show-cause notice issued for the assessment years 1970-.71 and 1971-.72 had been made only under the Travancore-Cochin Agricultural Income-tax Act, 1950, that for taking subsequent action for those assessment years, the provisions of the Travancore-Cochin Agricultural Income-tax Act can alone be applied. He also held that the assessments made under the Travancore-Cochin Agricultural Income-tax Act are final subject to a revision under the provisions of the said Act, and that there is no time-limit for taking suo motu action under section 34 of the Travancore-Cochin Agricultural Income-tax Act, since the operation of that Act has been continued even after repeal in view of the saving provision contained in section 9(1).

(2.) THE correctness of the said order of the Commissioner of Agricultural Income-tax has been questioned by the petitioners before us. Thus, the two questions that arise for our consideration are, (1) whether the provisions of the Travancore-Cochin Agricultural Income-tax Act, 1950, are applicable to the transferred territories even after the said Act has been repealed by the Repealing Act with effect from April 1, 1958, so as to enable the Board of Revenue to exercise the suo motu power even after three years, and (2) whether the petitioners are to be assessed as tenants-in-common or whether the are to be assessed as members of a Hindu undivided family?In this case, the facts are not in dispute. THE first petitioner, R. Eswara Iyer, was an assessee on the books of the Agricultural Incometax Officer, Tenkasi, in the status of an individual member up to the assessment year 1969-.70. However, during the year 1970-.71, he had stated before the Agricultural Income-tax Officer that the properties held by him and his brothers were ancestral and the income and expenditure in relation to the same were shared by them equally and that, therefore, they must be treated as tenants-in-common on the basis of the returns filed by them. Accordingly, the Agricultural Income-tax Officer treated them as tenants-in-common by an order dated July 15, 1971, for the assessment year 1970-.71 and by an order dated June 22, 1972, for the assessment year 1971-.72.

(3.) THE proposal to revise was challenged on the ground that as the assessment was made under the Andhra Pradesh General Sales Tax Act, 1957, the proposed revision was time-barred under section 20(3) of that Act as it was beyond four years from the date of the order of assessment served on him. THE court took note of the fact that under section 15 of the Hyderabad General Sales Tax Act, no period of limitation was prescribed for exercising the suo Motu power of revision and stated that as the rights and liabilities as to assessment in accordance with the provisions of the Hyderabad General Sales Tax Act had accrued or were incurred by the time the Andhra Pradesh General Sales Tax Act came into force, they are unaffected by the proviso to section 41 of the Andhra Pradesh General Sales Tax Act which repealed the Act and specifically provided that the said repeal shall not affect the previous operation of the said Acts or section or any right, title, obligation or liability already acquired, accrued or incurred thereunder.