9911796707
TMI Blog1967 (8) TMI 8X X X X Extracts X X X X X X X X Extracts X X X X ..... ) that even if the assessee be treated as a Hindu undivided family the imposition of wealth-tax on a Hindu undivided family was ultra vires the Constitution. The Appellate Assistant Commissioner negatived all the three contentions with the following observations : " As regards the objection regarding the description of the assessee, there is no substance in the objection. Only for the sake of conciseness the assessee has been described as Sm. Champa Kumari Singhi & Ors. Sri Bhandari's objection is that the names of the other members of the Hindu undivided family should have been included. This is purely a matter of convenience. The status has been correctly described in the D. N. itself as Hindu undivided family. Therefore, there is no force in this objection of Sri Bhandari. The contention that the word Hindu undivided family does not include a Jain family is also not correct. It has been held that the Hindu law applies to Jains, Sikhs and even the Khoja Muslims of Bombay. Therefore, there is no force in this contention. The third objection that the Wealth-tax Act does not apply to Hindu undivided family has also been answered by the Bombay High Court in the case of Mahavirprasa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... units chargeable to wealth-tax under section 3 of the Wealth-tax Act, 1957, were either individual or Hindu undivided family or company, none of the units covered the case of the assessee. The Tribunal allowed the appeal preferred by the assessee with the following observations : " Admittedly, the department has assessed the assessee in the status of a Hindu undivided family. When the learned representative for the assessee reiterated before us the ground taken before the Appellate Assistant Commissioner, that the assessee was not a Hindu but a Jain, we asked for an affidavit and/or other evidence, if any, to show that the assessee was a Jain. Compliance has been made and we accept the fact that the assessee is a Jain and forms a Jain undivided family. The question then arises, whether the term Hindu undivided family mentioned in section 3 of the Wealth-tax Act encompasses a Jain undivided family.... Referring to Mulla's Hindu Law, 12th edition, . . . we find that in sub-paragraph (2) of paragraph 1, it is stated that Hindus are divided into four castes---namely, (1) the Brahmans, or priestly caste ; (2) the Kshatriyas, or warrior caste ; (3) the Vaisyas, or agricultural caste ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lies is void and inoperative, as it offends article 14 of the Constitution of India ? " Now section 3 of the Wealth-tax Act, as it stood at the material time, used to read : " Subject to the other provisions contained in this Act, there shall be charged for every financial year commencing on and from the 1st day of April, 1957, a tax (hereinafter referred to as wealth-tax) in respect of the net wealth on the corresponding valuation date of every individual, Hindu undivided family and company at the rate or rates specified in the Schedule. " It was not disputed before us that the assessee forms a " Jain undivided family ". If a Jain undivided family is not the same thing as a Hindu undivided family, the assessee family does not fall to be taxed as a Hindu undivided family under section 3 of the Wealth-tax Act. Mr. B. Pal, learned counsel for the revenue, wanted to establish that Jains were Hindu dissenters. In support of the above proposition, he relied, firstly, on Golapchand Sastri's Tagore Law Lectures on the Hindu Law of Adoption (2nd edition), lecture 12, at page 452, where the following passage appears : " And although Jainism differs in many respects from Hinduism, yet on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these the Jains and the Sikhs are conspicuous examples. Using his first proposition as a spring-board, Mr. Pal further argued that the Jains, although dissenting from Hindu tenets of religion, continue to live as Hindu joint families, whenever they form a joint family, and do not constitute a different kind of joint family. In support of the second proposition, he relied upon the facts of the case in Lala Gulab Chand v. Lala Mannilal, in which a Jain family admittedly continued the family business as a joint Hindu family business after the death of the ancestor. Historically, Mr. Pal may be right in his contention that the Jains were originally Hindus but later on dissented from Hindu religious belief and became renegades. This is also the view expressed by the Judicial Committee in Sheo Singh Rai v. Dakho and in Sheokuarbai v. Jeoraj and also by the Madras High Court in Gateppa v. Eramma. Mr. Pal is not, however, right in his next contention that because some undivided joint families cared to describe themselves as Hindu undivided families, all Jain joint families must be regarded as Hindu undivided families. The case relied on by Mr. Pal, namely, Lala Gulab Chand's case does no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es or sects, with peculiar religion and usages, so different from the principles of the Shastras that they cannot but be regarded as being outside Hinduism. So far as native Christians are concerned there is a direct decision on the point by the Judicial Committee, namely, in Abraham v. Abraham in which the following passage occurs : " ........ upon the conversion of a Hindoo to Christianity the Hindoo law ceases to have any continuing obligatory force upon the convert. He may renounce the old law by which he was bound, as he has renounced his old religion, or, if he thinks fit, he may abide by the old law notwithstanding he has renounced his old religion ......... The profession of Christianity releases the convert from the trammels of the Hindu law, but it does not of necessity involve any change of the rights or relations of the convert in matters with which Christianity has no concern, such as his rights and interests in, and his powers over, property. The convert, though not bound as to such matters, either by the Hindu law or by any other positive law, may by his course of conduct after his conversion have shown by what law he intended to be governed as to these matters." T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a form or a development of Hinduism. Jains have been included within the applicability of the Acts, hereinbefore mentioned, irrespective of the fact that they are not Hindus properly speaking. The Wealth-tax Act does not adopt the above field of the applicability of the law, and, therefore, the width of the applicability of the Acts, mentioned above, should not be imported in the Wealth-tax Act. We have thus to proceed on the basis that Jains are non-Hindus, who are generally governed by the Hindu law. Now, can a non-Hindu joint family be treated as a Hindu joint family ? This question came up for consideration before the Mysore High Court in the case of P. F. Pinto v. Commissioner of Wealth-tax. In that case, the ancestors of the assessee, an Indian Christian professing Roman Catholic faith, were originally Hindus who were later on converted to Christianity. In respect of the succession to the properties of the assessee's grandfather's grandfather, the claim of the assessee that the Indian Succession Act will not apply, since they were governed by the provisions of Hindu law, was upheld ultimately by the Mysore High Court. Though the assessee was assessed to income-tax in the stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive and in favour of the assessee. Questions Nos. 2 and 3 were not pressed before us for answer. This was so because in the case of K. S. Venkataraman & Co. (P.) Ltd. v. State of Madras the Supreme Court observed : " As the Tribunal is a creature of the statute, it can only decide dispute between the assessee and the Commissioner in terms of the provisions of the Act. The question of ultra vires is foreign to the scope of its jurisdiction. If an assessee raises such a question the Tribunal can only reject it on the ground that it has no jurisdiction to entertain the said objection or to decide on it. As no such question can be raised or can arise on the Tribunal's order the High Court cannot possibly give any decision on the question of the ultra vires of a provision. At the most the only question that it may be called upon to decide is whether the Tribunal has jurisdiction to decide the said question. On the express provisions of the Act it can only hold that it has no jurisdiction. " The same view appears to have been reiterated by the Supreme Court in C. T. Senthilnathan Chettiar v. State of Madras. That being the law, we can only say that the Tribunal had no jurisdiction to ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
