TMI Blog1967 (7) TMI 36X X X X Extracts X X X X X X X X Extracts X X X X ..... rder of the Commissioner of Agricultural Income-tax dated August 1, 1964. The petitioner had been permitted to compound the agricultural income-tax payable by him for the assessment years 1958-59 to 1960-61, in his capacity as the karta of a Hindu undivided family. For the assessment year 1961-62 he applied 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, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, for, in his view, the female members like wives and daughters could not claim a partition as a son of the family could and that, therefore, the lands allotted to the wives and daughters of the petitioner would be hit by section 9(2)(a)(iii) and (iv) of the Act. The Commissioner added as additional 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 presen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the succession Act of 1956 will each be entitled to a share. In that case at a partition, in effect they merely work oat that right in severalty. A settlement presupposes that the settlee has no pre-existing right in the subject-matter settled on him. The wife, no doubt, may have no share as such in 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 u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for initiating action under section 34 by an application. This construction is supported by a dictum in Muthiah Chettiar v. Commissioner of Income-tax. Section 33A(1) of the Income-tax Act, 1922, is for present purposes in terms identical with section 34(2)(c) of the Madras Agricultural Income-tax Act, 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 rece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is case clearly shows that the time limit under section 33A(1) of the Income-tax Act is for the exercise of the suo motu revisional powers and the time limit under sub-section (2) is for the aggrieved party to apply to the Commissioner invoking his revisional powers. Section 34 of the Madras Agricultural 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was disposed of or the proceedings were terminated but the point of time when the proceedings were initiated or the Commissioner's jurisdiction was invoked. The court was apparently persuaded to take that view, because as the Bench considered the right of the assessee to apply for revision should not depend 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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