S KULDIP SINGH Vs. TEHSILDAR

JUDGEMENT

(1.) LACHHMAN Singh and his sons constituted a joint Hindu family and carried on business under the name and style of Saran Singh Lachhman Singh. Lachhman singh died on the 7th of May, 1944, but the family business continued. The joint hindu family firm was assessed to income-tax for the assessment year 1947-48. Afterwards proceedings were taken under Section 34 of the Indian Income-tax Act in 1955, and by order dated the 28th of March, 1956, the family firm was held liable to pay tax amounting to Rs. 1,11, 555/7/ -. As the tax was not paid the income-tax Officer sent a recovery certificate under Section 46 (2) of the Income-tax Act for recovery of the amount from the joint family firm which in all these proceedings has been described as Saran Singh Lachhman Singh. This amount is to be recovered as arrears of land revenue. The Collector issued warrants of arrest of Kuldip Singh and Gulzar Singh, adult members of the family, under Section 69 of the Punjab Land Revenue Act. They filed objections to the warrants of arrest on the ground that they were not liable to arrest and detention as the tax was not their individual liability but was the liability of the joint Hindu family. These objections were, however, rejected by the Collector on the 24th of August, 1956. Kuldip Singh and Gulzar Singh have filed this petition challenging the validity of the order of arrest. In view of the importance of the question, the case was referred to a Division Bench and it has now come before us for decision.

(2.) THE question that requires determination in this case is whether the amount mentioned in a certificate sent under Section 46 (2) of the Indian Income-tax Act for recovery of the amount due from the joint Hindu family as arrears of land revenue could be recovered from the individual coparcener by arrest and detention.

(3.) NOW under Section 2, Sub-clause (9) of |the Income-tax Act, a person includes a Hindu undivided family. Accordingly a Hindu undivided family is an entity for assessment. The petitioners with other members constitute a Hindu undivided family under the Indian Income-tax Act and were assessed as such. The petitioners allege that there has been a partition in the family and that the family business has been converted into a partnership since 1950 and that that partnership has been registered under Section 26 of the Income-tax Act. These allegations assuming them to be correct have no effect on the present case. Admittedly the tax now due has been assessed on the Hindu undivided family under Section 34 of the Income-tax Act for the assessment year 1947-48, and the joint and several liability of each member of the family has not been determined in accordance with the provisions of Section 25a Sub-clause (2) of the Act. The recovery certificate sent to the Collector under Section 46 (2) states that the amount is due from Saran Singh Lachhman Singh of Amristar and does not say that it is realisable from the petitioners individually.