TMI Blog1984 (7) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... 76, there was an assessment under the Agricultural Income-tax Act wherein all the lands in his possession and enjoyment were assessed in his hands as an individual. The assessee objected to the said assessment by filing an appeal before the Commissioner of Income-tax (Agricultural) on the ground that the assessment should have been made on him in the status of Hindu undivided family and not in the status of an individual. The Assistant Commissioner, however, did not accept the assessee's contention. The assessee thereafter went before the Tribunal and reiterated the same contention that the assessment should be made on him in the status of a Hindu undivided family and not as an individual. The Tribunal has chosen to accept the assessee's contention and set aside the assessment made on the assessee in his individual capacity and directed the assessment to be made on the assessee in the status of a Hindu undivided family. A similar order was passed for the assessment year 1976-77 and that is the subject-matter of Tax Case No. 1219 of 1979. When the assessments relating to the assessment years 1972-73, 1973-74 and 1974-75 came to be questioned before the Tribunal subsequently, the Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appears to have acquired 3.50 acres before his death. The assessee also acquired 9.38 acres and 9.29 acres and held them in the benami names of Anthonisamy and Natesa Odayar. Having regard to the lands in the actual possession and enjoyment of the assessee, the assessment came to be made by the assessing authority treating the assessee as an individual. The lands so assessed are: 1. Lands held in the assessee's name 10.52 acres 2. Lands in the name of the assessee's father 3.59 acres 3. Lands held in benami names 18.67 acres 4. Lands held by minor daughter, Parimalam 13.96 acres 5. Lands held by minor daughter, Vimala 13.34 acres 6. Lands in the name of grandmother 14.22 acres It is in the light of these admitted facts it has to be seen whether the assessee is to be assessed in the status of a Hindu undivided family as claimed by the assessee or as an individual as has been done by the assessing authority. According to the assessing authority as well as the Appellate Assistant Commissioner, as all the lands referred to above are in the possession and actual enjoyment of the assessee, though held in different names, they have to be assessed in the name of the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y. The view taken by the Tribunal has been challenged by the Revenue before us in these cases. After due consideration of the matter, we are satisfied that the Tribunal has come to the right conclusion. Admittedly, the properties were originally ancestral and the assessee got these properties by a partition under a partition deed dated August 7, 1959. The properties acquired on partition should be treated as having gone to the assessee in his capacity as karta of a Hindu undivided family of himself, his wife and two minor children. The assessee himself cannot be taken to have got' the properties at the partition in his individual capacity. The properties got at the partition continued to be joint family properties in the hands of the assessee to be a karta of the Hindu undivided family consisting of himself, his wife and two minor daughters. Dealing with a similar situation, the Supreme Court in Gowli Buddanna v. CIT [1966] 60 ITR 293 (SC) and N. V. Narendranath v. CWT [1969] 74 ITR 190 (SC) has held that coparcener getting a share in the ancestral properties in a partition takes the properties on behalf of the joint family of himself and his wife and minor daughters and that it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty. Therefore, the exclusion of the lands held by the minor daughters from the assessment of the assessee in his status as Hindu undivided family by the Tribunal also appears to be legal. So far as the lands left by the grandmother are concerned, the assessee is found entitled to only 1/21 share and since the assessee has succeeded through the grandmother to the extent of 1/21 share, that cannot come to the Hindu undivided family but to the assessee in individual capacity. Therefore, that extent acquired by him from the grandmother has to be assessed in his individual capacity without including the same in the assessment of the assessee in the status of a Hindu undivided family. In this view of the matter, we see no reason to differ from the view taken by the Tribunal. Hence, T.Cs. Nos. 361 of 1978 and 1219 of 1979 which arise out of the said common judgment of the Tribunal fail and they are dismissed. No costs. Coming to the Tax Cases Nos. 171, 172 and 173 of 1969, we find that the Tribunal has followed its decision rendered in the assessee's own case for the assessment years 1975-76 and 1976-77. In these cases, apart from the general contention, an additional contention has b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out of the remit order passed by the Commissioner. According to him, the theory of merger applies to this case and the opinion expressed by the Commissioner on the question of status and on the question of applicability of section 9(2) should be taken to have become final since the assessee had not challenged the findings given by the Commissioner by filing a revision before this court and such a finding which has become final cannot be interfered with in the subsequent proceedings arising out of the remit order. We find it difficult to accept this argument of the learned Additional Government Pleader. Once a direction is given by the Commissioner to make a fresh assessment, as against the fresh assessment order passed by the assessing authority, the assessee has a right of appeal to the Appellate Assistant Commissioner and a further appeal to the Tribunal. Though the assessing authority and the Appellate Assistant Commissioner are bound by the findings given by the Commissioner who is their superior authority, so far as the assessee is concerned, he is entitled to challenge the subsequent order passed by the assessing authority after the remand order in all its aspects and when su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal. On the facts of this case, we do not see how the theory of merger will come into play. For the application of the theory of merger, there should be one order which is made either the subject-matter of an appeal or revision. But here there are two separate orders, one an earlier order which was the subject-matter of revision before the Commissioner and the other a later order passed in pursuance of a remit order passed by the Commissioner. We are not in a position to hold that the remit order passed by the Commissioner has merged with the fresh order of assessment passed by the assessing authority. Normally, the lower authority's order will merge with the order of an appellate or a revisional authority. In these cases, the theory of merger is invoked in support of the contention that the order of a superior authority has merged with the order of a lower authority. We are, therefore, of the view that the theory of merger has no application at all in these cases. Since the additional contention raised by the learned Additional Government Pleader fails, these tax revision cases have also to be dismissed following the decision rendered by us in T.Cs. Nos. 361 of 1968 and 1219 of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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