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TMI Blog1977 (1) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the rule. The appeals arise 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. The appellant, Sashi Prasad Barooah, was the karta of a Hindu undivided family styled as S. P. Barooah and others. The family was governed by the 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. A ge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... income during the previous year ending the 31st March, 1946 to 1958." Accompanying the two notices sent by the Agricultural Income-tax Officer was also a notice under section 19(2) and section 30 of the Act. The appellant failed to submit a return or to furnish certified copies of the Central assessment orders. The Agricultural Income-tax Officer, as per order dated June 22, 1961, assessed the total agricultural income of the appellant for the year 1946-47 to be Rs. 1,45,994. An amount of Rs. 19,321.44 was held to be recoverable from the appellant. The appellant filed an appeal against that order but the same was dismissed by the Assistant Commissioner of Taxes on December 27, 1962. Revision filed by the appellant was dismissed by the Commissioner of Taxes as per order dated September 28, 1964. Certificate of public demand showing an amount of Rs. 3,74,087.89 as due from the appellant for the seven years in question was then issued by the Agricultural Income-tax Officer. Proclamation for the sale of the property of the appellant was thereafter issued for the recovery of the amount due from the appellant. The appellant thereupon filed, as mentioned earlier, seven writ petitions. P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed counsel has also emphasised the fact that in none of the communications sent by the appellant mentioned above, there was any reference to partition of the Hindu undivided family. After giving the matter our consideration, we are of the opinion that the two contentions advanced by Mr. Sen on behalf of the appellant are not well-founded. It is consequently not necessary for us to go into the question as to what is the effect of the omission of the appellant to refer to the partition in the communications sent by him to the Agricultural Income-tax Officer. It may be apposite at this stage to refer to the material provisions, as they stood at the relevant time, of the Act which provides for the imposition of tax on agricultural income arising from lands situated in Assam. According to the definition of "person" as given in section 2(m) of the Act, person includes an undivided or joint Hindu family. Section 3 is the charging section. According to this section, agricultural income-tax at the rate or rates specified in the annual Assam Finance Acts subject to the provisions of section 6 shall be charged for each financial year in accordance with, and subject to, the provisions of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny time within three years of the end of that financial year, serve on the person liable to pay agricultural income-tax on such agricultural income or, in the case of a company on the principal officer thereof, a notice containing all or any of the requirements which may be included in a notice under sub-section (2) of section 19, and may proceed to assess or reassess such income, and the provisions of this Act shall, so far as may be, apply accordingly as if the notice were a notice issued under that sub-section." Section 50 empowers the State Government to make rules. The material part of that section reads as under : " 50. (1) The Provincial Government may, subject to previous publication, make rules for carrying out the purposes of this Act, and such rules may be made for the whole of the Province or such part or parts thereof as may be specified. (2) In particular, and without prejudice to the generality of the foregoing power, such rules may--......... (j) prescribe the manner in which the tax shall be payable where the assessment is made on the agricultural income of a Hindu undivided or joint family and a partition of the property of such family has been effected afte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed family after a partition takes place in such family. This contention is devoid of force as we are of the opinion that the State Government was competent to make the part of rule 23 reproduced above in exercise of the powers conferred by sub-section (1) of section 50. According to that sub-section, the State Government may subject to previous publication make rules for carrying out the purposes of this Act. It has not been disputed before us that there was previous publication of the rules in question. The question is whether the part of rule 23 reproduced above can be said to have been made for carrying out the purposes of the Act. The answer to this question, in our opinion, should be in the affirmative. What the rule contemplates in that unless an order was made on the basis of the alleged partition of a Hindu undivided family, such family shall be deemed for the purposes of the Act to continue to be a Hindu undivided family. The rule thus relates to the working of the Act. Section 3 of the Act is the charging section and creates liability for tax in respect of the total agricultural income of every individual, Hindu undivided family, firm and other association of persons. Suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erar Sales Tax Act, 1947. The said Act provided for exemption from taxation in respect of the supply of certain material. Power was also conferred upon the State Government to amend such exemption by notification. This court upheld the validity of that notification. We may also refer to the case of Powell v. Apollo Candle Company Ltd. [1885] 10 App Cas 282, 291 (PC), which dealt with section 133 of the Customs Regulation Act of 1879 of New South Wales. That section conferred a power on the Governor to impose tax on certain articles of import. While repelling the challenge to the constitutional validity of that provision, the Privy Council observed : " It is argued that the tax in question has been imposed by the Governor, and not by the Legislature, who alone had power to impose it. But the duties levied under the Order in Council are really levied by the authority of the Act under which the order is issued. The Legislature has not parted with its perfect control over the Governor, and has the power, of course, at any moment, of withdrawing or altering the power which they have entrusted to him. Under these circumstances, their Lordships are of opinion that the judgment of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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