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SUPREME COURT OF INDIA
Sashi Prasad Barooah, Appellant
Versus
The Agricultural Income-tax Officer, and others, Respondents.
Civil Appeals Nos. 245-251 of 1972.
D/- 19-1-1977.
Advocates appeared
Mr. A. K. Sen, Sr. Advocate (M/s. D. N. Mukherjee and N. R. Choudhary, Advocates, with him) for Appellant; Mr. Purshottam Chatterjee, Sr. Advocate (Mr. S. N. Choudhary, Advocate with him), for Respondents.
Income-tax Act 1961 - Section 171 - Central Provinces and Berar Sales Tax Act. 1947 – Sales deed – Jurisdiction – Claim of compensation - A general notice was published in Assam Gazette and local newspapers in terms of sub-section Section 19 of Act calling upon persons whose agricultural income exceeded limits of taxable income to furnish returns within specified time appellant addressed a letter to Agricultural Income-tax Officer praying for extension of time for submission of return - Another letter was addressed by appellant to Agricultural Income-tax Officer stating that he was trying to expedite submission of return - Agricultural Income-tax Officer addressed a communication to appellant asking him to file return by appellant by letter informed said officer that he would meet him at - In his letter appellant informed Agricultural Income-tax Officer that he would file his return as soon as some matters were settled – Held, It is argued that tax in question has been imposed by Governor and not by Legislature who alone had power to impose it - But duties levied under Order-in-Council are really levied by authority of Act under which order is issued - Legislature has not parted with its perfect control over Governor and has power of course at any moment of withdrawing or altering power which they have entrusted to him - In these circumstances their Lordships are of opinion that judgment of SC was wrong in declaring Section 133 of Customs Regulations Act of 1879 to be beyond the power of Legislature - State of Madras question was as to of Rules 4 and 16 framed under Madras General Sales Tax Act. Section 5 (vi) of that Act had left it to rule-making authority to determine at which single point in series of sales by successive dealers the tax should be levied and pursuant thereto - Rules 4 and 16 had provided that it was purchaser who was liable to pay tax in respect of sales of hides and skins - Validity of rules was attacked on ground that it was only legislature that was competent to decide who shall be taxed and that determination of that question by rule-making authorities was ultra virus - Madras High Court rejected this contention and held on a review of authorities that delegation of authority under Section 5 (vi) was within permissible constitutional limits - Fact that unlike Income-tax Act, there is no statutory provision in Act with which we are concerned and matter is dealt with by rules framed under Act would not make any material difference - Rules would be as much binding as would be statutory provision in this respect - Only requirement is that rules should be validly made in exercise of powers conferred by Act - So far as this aspect is concerned court have already held above that rule in question was validly made as it was within competence of the State Government to make such rule – Appeal dismissed
Judgment
KHANNA, J. :- The short question which arises for consideration in these seven appeals filed on certificate against the judgment of Assam and Negaland High Court is the scope and validity of the following part of Rule 23 of the Assam Agricultural Income-tax Rules, 1939 (hereinafter referred to as the Rules) framed under Section 50 of the Assam Agricultural Income-tax Act (Assam Act 9 of 1939) (hereinafter referred to as the Act) :
"Where an order apportioning the liability to the tax on the basis of partition has not been passed in respect of a Hindu family hitherto assessed as undivided or joint, such family shall be deemed for the purposes of the Act, to continue to be a Hindu undivided or joint family."
The High Court held that the facts of this case were covered by the above quoted rule. The High Court also repelled the challenge to the vires of the rule.
2. The appeals arises out of seven petitions filed under Articles 226 and 227 of the Constitution of India by the appellant which were dismissed by a common judgment. The matter relates to assessment years 1946-47, 1947-48. 1948-49, 1949-50, 1950-51, 1951-52 and 1955-56. Each writ petition related to one of these years. We may set out the facts relating to the assessment year 1946-47 as it is the common case of the parties that the decision about the writ petition relating to that year would govern the other writ petitions also.
3. The appellant Sashi Prasad Barooah was the Karta of a Hindu undivided family styled as S. P. Barooah & 995 others. The family was governed by Dayabhaga school of Hindu Law and consisted of three members. The family owned certain tea estates and carried on the business of tea plantation. It was assessed under the Act in respect of its income derived from manufacture and sale of tea. The case of the appellant is that there was a partition of the family on January 1, 1945 and as a result of that partition, some of the tea estates fell to the share of the appellant and he became exclusive owner thereof from the date of the partition.
4. A general notice dated April 3, 1946 was published in the Assam Gazette and local newspapers in terms of sub-section (1) of Section 19 of the Act calling upon persons whose agricultural income exceeded the limits of taxable income to furnish returns within the specified time. On March 24, 1947 the appellant addressed a letter to the Agricultural Income-tax Officer praying for extension of time for submission of the return. Another letter dated May 10, 1947 was addressed by the appellant to the Agricultural Income-tax Officer stating that he was trying to expedite the submission of the return. On February 15, 1951 the Agricultural Income-tax Officer addressed a communication to the appellant asking him to file the return by March 14, 1951. The appellant by letter dated March 16, 1951 informed the said officer that he would meet him at Shillong. In his letter dated July 21, 1951 the appellant informed the Agricultural Income-tax Officer that he would file his return as soon as some matters were settled. On March 25, 1955 the appellant addressed another letter to the Agricultural Income-tax Officer stating that he had not received the relevant assessment orders made by the Income-tax Officer (the income-tax officer under the Indian Income-tax Act. 1922) relating to the assessment years 1946-47 onwards. On July 11, 1959 the following two notices were sent by the Agricultural Income-tax Officer to the appellant.
"I am to inform you that following the dissolution of family business of Sashi Prasad Barua and Others in the year 1945, you are liable to furnish a Return of agricultural incomes including those from the Tea Estate under your ownership from the assessment year 1946-47.
Please also note that the Returns along with certified copies of Central Income-tax Assessment should reach this office on or before 15-8-59. In default, you will be liable for summary assessment".
"Whereas I have reason to believe that your total
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