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TMI Blog1967 (7) TMI 36X X X X Extracts X X X X X X X X Extracts X X X X ..... pplied to the Agricultural Income-tax Officer having jurisdiction for an order under section 29(1) of the Act on the ground that there had been a partition of the joint family properties between him and his six minor sons, after setting apart certain properties towards the marriage expenses and provision of his daughters and for the maintenance of his two wives. The Income-tax Officer found, after notices to the concerned parties and enquiry, that the petitioner had a business and other assets, which had not been brought into the partition and that the division was only of agricultural lands. On the view that this was a case of partial partition and the status of the joint family had not been disrupted by the partition, he rejected the requ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reason for regarding the partition as not a genuine one, that the father and his two wives were living together along with the children and that there was no change in the nature of the family or in the enjoyment of the properties. On behalf of the petitioner his counsel, Mr. Narayanaswami, raises two points : (1) as to propriety of the Commissioner's finding on the partition deed, and (2) as to limitation. For the, reasons, which will presently appear, we are of opinion that both the points are well founded. The reasons, which prevailed with the Commissioner for regarding the partition as not a genuine one, do not commend themselves to us. The personal law of the petitioner allows a partial partition. The Commissioner was wrong in his vie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the joint family properties, though even here under the old Hindu law, the point may be stretched in her favour, as the courts have now recognised that her right to maintenance is in lieu of her time-old but obsolete share of hers in the joint family properties. The Commissioner's order is thus vitiated by several errors and has to be set aside. The point as to limitation does not appear to have been urged before the Commissioner, and, if urged, it finds no place in his order. Section 34(1) of the Act entrusts the Commissioner with the power to call for records, either suo motu or on application by an assessee, of any proceeding under the Act, taken by his subordinate, and after enquiry to pass such orders thereon as he thinks fit. He sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1955, so far as suo motu exercise of revisional power is concerned. Actually, that was a case arising out of an application under section 33A(2) of the Income-tax Act. .. The order against which the application was directed was dated February 4, 1948, and the application itself was made only on February 18, 1949, more than a year after the date of the Income-tax Officer's order. The order of the Income-tax Officer was found to have been received by the applicant only on February 24, 1948. For the revenue it was argued that section 33A (2) was not a provision prescribing a time limit for the exercise of the right of the party aggrieved but it imposed a time limit, for the exercise of the revisional powers by the Commissioner, and it was, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Income-tax Act, 1955, did away with the distinction between the two kinds of time limit and expressly adopted the language of section 33A(1) of the Income-tax Act. The legislature must have known the fiscal legislative practice, atleast so far as the Income-tax Act of 1922 was concerned, and if it still chose to follow the language of only section 33A(1) of the Income-tax Act, it is not, in our opinion, for the court to import into section 34 considerations, which will legitimately apply only to the language of section 33A(2) of the Income-tax Act. In Viswanathan Chettiar v. Commissioner of Income-tax section 34(3) (then section 34(2) of the Income-tax Act) came up for construction. That sub-section said that no order of assessment or reas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d upon the hazard of the revising authority disposing of the matter within a particular period and could not be defeated by the failure of the authority to discharge the statutory functions. With due respect, we are not able to share that view and would wish that, if a case like that invoking the revisional power by an application arose, the question will have to be reconsidered. To the instant case before us, however, the actual ratio of that case may not apply, because as we said, we are here concerned with the Commissioner's exercise of his suo motu powers. In such a case we adopt the pattern of construction placed by Muthiah Chettiar v. Commissioner of Income-tax on section 33A(1) of the Income-tax Act, 1922, the language employed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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