INSPECTING ASSISTANT COMMISSIONER OF AGRICULTURAL INCOME TAX AND SALES TAX, KOZHLKODE versus POOMULLI MANAKKAL PARAMESWARAN NAMBOODRIPAD

Citation: [1972] 1 S.C.R. 298 · Decided: 18-08-1971 · Supreme Court of India · Bench: K.S. HEGDE · Disposal: Dismissed
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Judgment (excerpt)

298 
INSPECTING ASSISTANT COMMISSIONER OF 
AGRICULTURAL. INCOME TAX AND· 
SALES 
TAX, 
KOZlllKODE 
v. 
POOMULLI MANAKKAL PARAMESWARAN 
NAMBOODRIPAD 
August 18, 1971 
(K. S. HEGDE AND A. N. GROVER, JJ.] 
Travancore-Cochin Agricultural Income-tax Act, 1950, as amended 
by Act 12of1964, s. 29-Scope of 
In 1958, there was a partition in the family of the respondent by a 
registered partition deed. In January 1960, it was conceded on behalf 
of the Agricultural Income-tax Officer, before the High Court, that the 
respondent was liable to be taxed only as an 'individual', that is, it was 
conceded that the respondent's family was a divided family. 
Various 
attempts made by the Department thereafter, to assess the reepondent 
as Karta of his family were set aside by the High Court, and the res-
pondent and other members of his quondam family were asces"d as 
'individuals' till 1964. In 1965, notice was again issued to the mpondent 
with respect to the assessment year 1961-62 for assessing him as the 
karta of his family, and the respondent filed a writ petition in the High 
Court. The Department contended that in view of the arcendment of 
s. 29 of the Travancore-Cochin Agricultural Income-tax Act, 1950, by 
Act 12 of 1964, it was permissible for the Department to re-assess the 
respondent as the Karta of the family as no decision that the respondents 
family was a divided family had been rendered by the Agricultural Ir.ccme-
tax Officer and the family must hence be deemed to be an undivided 
family. The High Court held in favour of the assessee. 
Dismissing the appeal to this Court, 
A 
B 
c 
D 
E 
HELD: (I) The amended s. 29 was given retrospective effect from 
F 
April I, 1958; but it is only a machinery section. It is attracted to an 
assessment proceeding only if one of the two conditions prescribed in 
sub. s. (I) is established, namely, either the family in question was being 
assessed 
as an undivided family in the previous assessment yt:ar, 
or, 
that the family was being assessed for the first time. The deeming 
provision contained in s. 29(3) can have application only in cases where 
one or the other conditions prescribed by s. 29(1) is satisfied and not 
G 
otherwise. [303F-G; 307F-H] 
In the present case, every attempt made by the assessing authority 
to. assess the quondam family of the respondent was set aside by the 
High Court and the department had not only not assessed that family 
as an undivided family, but had assessed the individual members of the 
family as divided members. That is, the question whether the family 
H 
was divided or not had been gone into and decided. It cannot also be 
said that the family was 'hitherto assel!lled: as a Hindu undivided 
family'. [307H; 308A-B] 
t::OMMR. AGRIC.. INC.OMETAX V. P.M.P. NAMBOODRIPAD 
299 
(lfegde, J.) 
A 
(2) The expressiOn 'which (meaning family) is being assessed for the 
first time as a Hindu undivided family' presupposes the existence of the 
family. 
Section 29(1) does not permit the assessing authority to create 
a family by re-joining the divided parties or otherwise. If the family 
has ceased to exist even before the assessment proceeding started then 
there can be no family which is being assessed to tax for the first ume. 
B 
[308B-F] 
In the present case, the family sought to be taxed was 'non-existing' 
in the concerned previous years and hence could not be considered as 
a Hindu undivided family 'being assessed for the first time'. Therefore, 
the 'deeming' provision in s. 29(3) could not be applied. [308G-H] 
Additional Income-tax Officer, Cuddapah v. A. Thimmarya 55 I.T.R. 
C 
666(S.C.), referred to. 
CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 62 
and 63 of 1969. 
Appeals from the judgment and order dated November 
21, 1967 of the Kerala High Court in 0. P. Nos. 2979 of 
D 
1965 and 1395 of 1966. 
E 
V. A. Seyid Muhammad, P. K. Pillai for M. R. Krishna 
Pillai, for the appellant (in both the appeals). 
S. T. Desai and A. S. Nambiar, for the respondent 
(in both the appeals). 
The Judgment of the Court was delivered by 
Hegde, J. In these appeals by certificates brought by 
the Department, we have to decide as to what is the true 
scope of s. 29 of the Kerala Agricultural Income-tax Act, 
1950 as amended in 1964 (to be hereinafter referred to as 
F the Act)? 
This case has a long history which by no means is 
complimentary to the Department. The common res-
pondent in both these appeals moved the High Court of 
Kerala under Art. 226
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