Income from the holdings of a deceased father who was already divided from his sons is not assessable in the hands of the sons as a joint family.

RAJU, J.

1. The above revision has been filed against the order of the Commissioner of Agricultural Income Tax dated 15.11.1983, in exercise of the suo motu powers of revision under S. 34 of the Tamil Nadu Agricultural Income Tax Act, 1955, (hereinafter referred to the as “the Act Thereunder the Commissioner has set aside the assessment order passed by the Agricultural income Tax Officer, Coonoor dated 20.6.1980 under S. 17(3) of the Act.

2. One K. Simrathmull, a resident of Uthagamandalam, was an assessee on the file of Agricultural Income Tax Officer, Coonoor. There was a partition in the family among the deceased and his two sons when he was alive and it is claimed that the partition has also been accepted by the Agricultural Income Tax Officer in his proceedings dated 9.2.1962 resulting in the deceased father and his sons becoming separate. The father viz. K. Simrathmull died on 28.12.1979. The elder son by name Mothilal appears to have filed this return in respect of the holdings of the deceased for the assessment year 1980-1981 and separate assessments have been made in the names of the deceased father and two sons in respect of their respective holdings treating them as three different units for assessment separately in their own names. Of course the sons have been assessed all along in their capacity as Hindu Undivided Family (hereinafter referred to as ‘H.U.F.’) since the properties were joint family properties in so far as their shares obtained in the earner partition are concerned, vis-a-vis their heirs. The Agricultural Income Tax Officer has chosen to pass three orders on 20.6.1980 one assessing the deceased K. Simrathmull in his capacity as H.U.F. and two sons separately in respect of their holdings in their capacity as H.U.F. by different orders.

3. While matters stood thus, the Commissioner of Agricultural Income Tax issued notices under the Act proposing to set aside the three orders passed by the Agricultural Income Tax Officer mainly on the grounds (a) that no order could have been validly passed in the name of the deceased K. Simrathmull, the father, for the assessment year 1980-1981 in respect of his holdings and that (b) the holdings of the father should be assessed clubbing the same with the sons as H.U.F. The eldest son K.S. Mothilal appears to have filed objections objecting to the proposed move and contending that after the death of the father, the become from the estate of the father could not be clubbed and assessed in the capacity of H.U.F. in the hands of the sons, particularly when during the lifetime of the father, the sons got separated and were themselves different entities in respect of their holdings. The Commissioner over-ruled the objections and confirmed the proposals and thereby ordered the clubbing of the properties of the deceased father with those of Mothilal and the said Mothilal should be brought to assessment in his capacity as the Kartha of the deceased family.” On that view, the orders of the Agricultural Income Tax Officer were set aside and the matter was remitted for fresh disposal. Of course one of the grounds on which the Commissioner interfered with the order is that no order of assessment could have been passed in the name of a dead person in so far as it relates to the assessment in favour of Simrathmul l, the father.

4. Mr. S.P. Subramaniam, the learned counsel appearing for the petitioner invited our attention to the decisions reported in Additional Income Tax Commissioner v. P.L.K. Chettiar AIR 1979 Madras 1 and in Commissioner of Wealth Tax, Kanpur v. Chander Sen AIR 1986 S.C. 1753 and contended that the properties inherited by a person from his divided father constituted his separate and individual properties and not the properties of the joint family constituting of himself, his wife, sons and daughters and that such income was not assessable in the hands of the assessee-son in his capacity as H.U.F. The learned Additional Government Pleader (Taxes) in our