ANDALAMMAL K Vs. COMMISSIONER OF AGRICULTURAL INCOME TAX

JUDGEMENT

(1.) -

(2.) THE assessee, by name, Thirumathi Andalammal, is borne on the file of the Deputy Commercial Tax Officer, Tiruchirapalli She holds lands measuring 17.73 acres. For the assessment year 1971-72, the Agrl. ITO passed an order on the basis that she held a total extent of 36.09 acres. THEre was an objection to the assessment on the ground that the 17.73 ordinary acres were recalled in trust by her under two settlement deeds execute by her and the they ought to be excluded and she could be assessed only on the income from the 18.36 ordinary acres. This objection was overruled and the Agrl. ITO assessed her on the bias of her ownership of 36.09 acres. Against the order of the Agrl. ITO the assessees preferred an appeal to the Assistant Commissioner which was not successful and thereafter to the Tribunal. THE Tribunal remanded the appeal to the Assistant Commissioner and, on remand, the Assistant Commissioner confirmed the original order without excluding the trust lands. Again, the assessee preferred an appeal to the Tribunal and it allowed the appeal on August 9, 1974, and directed the Agrl. ITO to exclude the income from the trust lands from assessment.

(3.) SECTION 65 of the Act provided for the composition of agrl. income-tax in the case of any person who holds lands wholly grown with non-plantation crops and who applies to the prescribed officer for permission to compound the agrl. Income-tax payable by him. The liability to agrl. income-tax has been cast, under s. 3(1), on the total agrl. income of the previous year of every person. The postulate of s. 3 is that the income must be the assessees income. It is this liability, on the basis of the assessee deriving income from his or her own land, that is compounded under s. 65. In the present case, when once it is found that the assessee dinette not own any land in excess of 18.36 ordinary acres there could be no liability to compound with reference to any excess ares. It is true that s. 65 provided for the compounding with respect to any person holding any land grown within plantain crops. The expression "to hold" has been defined in s. 2(nn) as meaning, with its grammatical variations and cognate expressions, "to as a maintenance-holder or in one or more of those capacities." In those circumstance, the Agrl. ITO could not have clubbed the 18.36 acres owned by the assessee with the 17.73 acres held by her as a trustee. Even in the case of the disposal of a compounding application, as in the case of as assessment, there is a duty to examine if the assessee is the owner of the lands, especially in a case where the application itself shows that there are sum aspect which require examination. The Agrl. ITO, even when disposing of an application for compounding, is not like a sub-Registrar a document so long as it is duly stamped and there is an admission of execution, supported by the requisites identifying witnesses. To accept the contrary proposition would result in such composition proceedings being left to be sued with ulterior motives. the result is that the assessee would be entitled to the refund as prayed for. The writ petition is accordingly allowed. There will be no order as to costs.