VIJAYARAGHAVAN R Vs. COMMISSIONER OF AGRICULTURAL INCOME TAX

JUDGEMENT

(1.) THE petitioner is an assessee on the file of the second respondent (the Agricultural Income-tax Officer, .Tiruthuraipoondi) since 1958-59. For the assessment year 1969-70, the petitioner was permitted to compound the tax payable by him on an extent of 50.36 ordinary acres equivalent to 29.73 standard acres by the second respondent. During the assessment year 1970-71, by mistake, according to the second respondent, he was permitted to compound on an extent- of 15.19 ordinary acres equivalent to 8.83 standard acres only. In reducing the holding of the petitioner, the second respondent deducted an extent of 35.47 ordinary acres stated to have been given to the petitioner's two minor sons and three minor daughters under the partition deed dated March 26, 1969. For the assessment year 1970-71, in view of this mistake, the petitioner was called upon to pay the tax of Rs. 14.96 only and a similar order was repeated for the assessment year 1971-72. On a further scrutiny of the records relating to the petitioner's holding, the second respondent came to know that the permission to compound the tax on an extent of 8'83 standard acres only after deducting the lands stated to have been parted with under the partition deed dated March 26, 1969, was not in accordance with the law. THErefore, a show-cause notice was issued on June 3, 1972, calling upon the petitioner why the properties transferred in the name of the minor sons and minor daughters under the partition deed dated March 26, 1969, should not be treated as indirect transfer attracting Section 9(2) of the Agricultural Income-tax Act (hereinafter referred to as "the Act"). THE petitioner received the notice on June 12, 1972. He filed the reply on June 14, 1972, stating that the properties given to his minor sons and daughters have been under their respective enjoyment and possession, and that the transfer cannot be treated as one coming within the purview of Section 9(2) of the Act. THE second respondent did not agree with the contention of the petitioner and, therefore, issued another notice under Section 35 of the Act on October 23, 1972, indicating his intention to treat the lands transferred to the petitioner's minor sons and daughters as escaped from the assessment for the years 1970-71 and 1971-72. THEreby, he called upon the petitioner to file his objections, if any. This notice was received by the petitioner on October 30, 1972. An oral enquiry was held on December 8, 1972. During the oral enquiry the petitioner agreed in include the lands transferred to his minor children in his holding and to pay tax on the entire holding for the assessment years in question. On such consent as evidenced by the statements tendered during the enquiry the second respondent revised the assessment font the years 1970-71 and 1971-72, by his orders dated December 18, 1972. As per the revised order under Section 65 read with Section-35, the petitioner was asked to pay a sum of Rs. 308'44 for each of the assessment years in question. Aggrieved by these orders, the petitioner preferred the revision petitions to the first respondent, the Commissioner of Agricultural Income-tax, Madras. THE first respondent, after giving a personal hearing to the chartered accountant who appeared on behalf of the petitioner, dismissed the revision petitions by a common order dated October 31, 1973. It is to quash these orders, the present writ petitions have been preferred. Writ Petition No. 1749 of 1974 relates to the assessment year 1970-71, while Writ Petition No. 1750 of 1974 relates to the asssssment year 1971-72. Thus, both these petitions are interconnected.

(2.) MR. K. J. Chandran, learned counsel for the petitioner, in attacking the impugned order raises the following points before me :