The expression 'brother' in the Schedule to the Orissa Agricultural Income-tax Act, 1947, which prescribed the rates of agricultural income-tax for Hindu undivided families consisting of brothers only, includes the son and the son of a son of a brother.

Headnote:
ORISSA AGRICULTURAL INCOME-TAX ACT, 1947 - S. 10(1) - HINDU UNDIVIDED FAMILY - CONSISTING OF BROTHERS ONLY - MEANING OF - EXPRESSION 'BROTHER' INCLUDES SON AND SON OF SON OF A BROTHER - FAMILY CONSISTING OF SONS OF DECEASED BROTHERS - REGARDED AS CONSISTING OF 'BROTHERS ONLY' FOR PURPOSE OF TAXATION.
Fact of the Case:

The respondent represented a joint Hindu family consisting of four members, Binod Behari, Puran Chandra, Shyam Sundar, and Laxmindhar. The family owned agricultural lands, cows, and buffaloes. The assessing officer determined the income of the respondent for the years 1950-51, 1951-52, and 1952-53, including Rs. 200 in each year derived from the sale of milk. The Agricultural Income-tax Tribunal excluded the income from milk and gave the respondent the benefit of the rates prescribed in the Schedule to the Act. The State of Orissa referred questions to the High Court, which answered both questions in the affirmative. The State appealed to the Supreme Court.
Finding of the Court:

The Supreme Court held that the answer recorded by the High Court on the first question was not challenged, as it was concluded by the judgment of the Supreme Court in Commr of Income-tax, W. B., Calcutta, v. Raja Benoy Kumar Sahas Roy. On the second question, the Court held that the expression 'brother' in the Schedule to the Act, which prescribed the rates of agricultural income-tax for Hindu undivided families consisting of brothers only, included the son and the son of a son of a brother. Therefore, the family consisting of the sons of the deceased brothers could be regarded as consisting of 'brothers only' for the purpose of taxation under the Orissa Agricultural Income-tax Act.
Issues: Whether the Tribunal was right in holding that income from milk derived from milch cows maintained by the respondent was not agricultural income and whether the Tribunal was right in holding that the Hindu undivided family represented by the respondent was a Hindu undivided family consisting of brothers only.
Ratio Decidendi: The Court interpreted the expression 'brother' in the Schedule to the Orissa Agricultural Income-tax Act, 1947, which prescribed the rates of agricultural income-tax for Hindu undivided families consisting of brothers only, to include the son and the son of a son of a brother. Therefore, the family consisting of the sons of the deceased brothers could be regarded as consisting of 'brothers only' for the purpose of taxation under the Act.
Final Decision: The appeals were dismissed, and there was no order as to costs.

Judgement

SHAH, J. : These three appeals relate to proceedings for assessment of agricultural income-tax under the Orissa Agricultural Income-tax Act, 1947; for the years 1950-51,1951-52 and 1952-53, and raise common questions.

2. The respondent represents a joint Hindu family consisting of four members, relationship between whom is explained by the following table:

3. Before the relevant years of account Jadimani, Biswambar and Bhagaban had died and Binod Behari, Puran Chandra, Shyam Sundar and Laxmindhar were the surviving members of the family. The joint family owned agricultural lands, cows and buffaloes. The assessing officer determined the income of the respondent for 1950-51 at Rs. 11,949, for 1951-52 at Rs. 10,850 and for 1953-54 at Rs. 9,549. In these sums were included in each year Rs. 200 as income derived by sale of milk of cows and buffaloes maintained by the family. The order of assessment was confirmed by the Assistant Collector of Agricultural Income-tax. In appeals to the Agricultural Income-tax Tribunal, the amount of Rs. 200 in each year derived from sale of milk was excluded and the Tribunal gave to the respondent benefit of the rates prescribed in the Schedule to the Act.

4. At the instance of the State of Orissa the following questions were referred to the High Court under S. 29 (2) of the Act:

(1) Whether in the facts and circumstances of the case the Tribunal is right in holding that income from milk derived from milch cows maintained by the opposite party is not agricultural income so as to be assessed to income-tax under the Agricultural Income-tax Act, 1947.

(2) Whether in the facts and circumstances of the case the Tribunal is right in holding that the Hindu undivided family represented by Sri Shyam Sundar Patnaik in the instant case, is a Hindu undivided family consisting of brothers only.

The High Court answered both the questions in the affirmative. The State of Orissa has preferred these appeals with special leave

5. Before us the correctness of the answer recorded by the High Court on the first question is not challenged, because the question raised is concluded by the judgment of this Court in Commr of Income-tax, W. B., Calcutta, v. Raja Benoy Kumar Sahas Roy, (1957) 32 ITR 466

6. The second question alone remains to be determined.

7. Section 2(1) of the Orissa Agricultural Income-tax Act, 1947 defines "agricultural income . Section 3 defines the incidence of tax on agricultural income. By S. 5 it was provided at the material time that agricultural income-tax shall be payable by every person whose total agricultural income of the previous year exceeds five thousand rupees. By S. 10 it is provided.

"(1) The total agricultural income of a Hindu undivided family shall be treated as the income of one individual and assessed as such:

"Provided that if a Hindu undivided family consists of brothers only as explained in the Schedule, the total agricultural income of the family shall be assessed at the rate specified in the Schedule.

(2) * * * *

Clause B of the Schedule prescribed the rates of agricultural income-tax in the case of every Hindu undivided family consisting of brothers only:

(a) If the share of a bother is five thousand rupees or less Three pies in the rupees.

(b) If the share of a brother exceeds thousand rupees. The average rate applicable to the share of such brother if he were assessed as an individual.

The Explanation to the Schedule states that for the purpose of the Schedule "brother includes the son and the son of a son of a brother and the widow of a brother, and the "share of a brother means the portion of the total agricultural income of a Hindu undivided family which would have been allotted to a brother if a partition of the property of such family had been made on the last day of the previous year.

8. Binod Behari and Puran Chandra, sons of Biswambar were brothers, and Shyam Sundar and Laxmidhar, sons of Bhagaban were brothers. By the Explanation, the expression "brother includes

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