PETITIONER:
SASHI PRASAD BAROOAH
Vs.
RESPONDENT:
THE AGRICULTURE INCOME-TAX OFFICER, SHILLONG,ASSAM & ORS.
DATE OF JUDGMENT19/01/1977
BENCH:
KHANNA, HANS RAJ
SARKARIA, RANJIT SINGH
CITATION:
1977 AIR 993 1977 SCR (2) 645
1977 SCC (1) 867
ACT
Assam Agricultural Income Tax Rules, 1939 r. 23--Scope
of--Rule if ultra vires.
HEADNOTE
Rule 23 of the Assam Agricultural Income-tax Rules, 1939
provides that where an order apportioning the liability to
the tax on the basis of partition has not been passed in
respect of a Hindu undivided family hitherto. assessed as
undivided or joint, such family shall be deemed, to continue
to be a Hindu undivided or joint family.
The assessee was the Karta of a Hindu undivided family,
which was assessed to agricultural income-tax in respect of
income derived from the manufacture and sale of tea. The
assessee contended before the Agricultural Income-tax
Officer that, since there was disruption of the Hindu undi-
vided family, no agricultural income-tax was payable exen
though agricultural income had arisen from tea estates.
This plea was rejected. His petition under Art. 226 of the
Constitution impugning the validity of r. 23 had been dis-
missed by the High Court.
In appeal to this Court it was contended that (i) after
the dissolution of the family no assessment order could be
made under r. 23 in respect of such disrupted Hindu Undi-
vided family (ii) the State Government had no power to make
a rule for the assessment of a Hindu undivided family after
a partition took place in the family.
Dismissing the appeals,
HELD: (1) The language of r. 23 clearly warrants the
conclusion that in the absence of an order apportioning the
liability to tax on the basis of partition in respect of a
Hindu undivided family hitherto assessed as undivided or
joint, such family shall ,be deemed, for the purpose of the
Act to continue to be a Hindu Undivided family. No order
apportioning the liability to, tax on’ the basis of the
alleged partition having been passed, the family shall
continue be treated as a Hindu undivided family. [651 C-F]
2(a) The liability for tax having been created by the
charging section, the rule deals with the question as to who
should be the person that should be assessed to tax. This
is a matter of detail to carry out the purposes of the and
the State Government was well within its competence to make
the rule in exercise of its rule-making power. [652 C-D]
(b) The fact that. unlike the Income-tax Act, there is
no statutory provision in the Act and the matter is dealt
with by the rules, would not make any material difference.
The rules would be as much binding as would be statutory
provision in t,his respect. [652 E-F]
(c) It is well settled that it is not unconstitutional
for the legislature to leave it to the executive to deter-
mine the details relating to the working of taxation laws.
such as selection of persons on whom the tax is to be
levied. the rate at which it is to be charged in respect of
different classes of goods and the like. [652 G-H]
Pt. Banarsi Das v. State of Madhya Pradesh [1959] S.C.R.
427, followed.
Powell v. Appollo Candle Company Limited [1885] 10 A.C.
282 and Syed Mobgreed & Co. v. The State of Madras 3 S.T.C.
367, referred to.
646
JUDGMENT
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 245-251/72.
From the Judgment and Order dated 21-9-1970 of the Assam
and Nagaland High Court in Civil Rules Nos. 105, 106 and 123
to 127/ 66.
A.K. Sen, D.N. Mukherjee and N.R. Choudhary for the
Appellant.
Purshottam Chatterjee and S.N. Choudhary for the respond-
ents.
The Judgment of the Court was delivered by
KHANNA, J. The short question which arises for consid-
eration in these seven appeals filed on certificate against
the judgment of Assam and Nagaland High Court is the scope
and validity of the following part of rule 23 of the Assam
Agricultural Income-tax Rules, 1939 (hereinafter referred to
as the rules) framed under section 50 of the Assam Agricul-
tural Income-tax Act (Assam Act 9 of 1939) (hereinafter
referred to as the Act):
"Where an order apportioning the liability to the tax
on the basis of partition has not been passed in respect of
a Hindu family hitherto assessed as undivided or joint, such
family shall be deemed for the purposes of the Act, to
continue to be a Hindu undivided or joint family."
The High Court held that the facts of this case were
covered by the above quoted rule. The High Court also
repelled the challenge to the vires o{ 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 peti-
tion 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 & Others. The
family was governed by 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 general notice dated April 3, 1946 was published in
the Assam Gazette and local newspapers in terms o,f sub-
section (1) of section 19 of the Act calling upon persons
whose agricultural income exceeded
647
the limits of taxable income to furnish returns within the
specified time. On March 24, 1947 the appellant addressed a
letter to the Agricultural Income-tax Officer praying for
extension of’ time for submission of the return. Another
letter dated May 10, 1947 was addressed by the appellant
to the Agricultural Income-tax Officer stating that he was
trying to expedite the submission of the return. On February
15, 1951 the Agricultural Income-tax Officer addressed a
communication to the appellant asking him to file the
return by March 14, 1951. The appellant by letter dated
March 16, 1951 informed the said officer that he would
meet him at Shillong. In his letter dated July 21, 1951 the
appellant informed the Agricultural Income-tax Officer
that he would file his return as soon as some matters
were settled. On March 25, 1955 the appellant addressed
another letter to the Agricultural Income-tax Officer stat-
ing that he had not received the relevant assessment orders
made by the Income-tax Officer (the income-tax officer under
the Indian Income-tax Act, 1922) relating to the assessment
years 1946-47 onwards. On July 1959 the following two
notices were sent by the Agricultural Income-tax Officer
to the appellant:
"I am to inform you that following the
dissolution of family business of Sashi
Prasad Barua and Others in the year 1945, you
are liable to furnish a Return of agricultur-
al incomes including those from the Tea Es-
tates under your ownership from the assessment
year 1946-47.
Please also note that the Returns along
with certified copies of Central Income-tax
Assessment should reach this office on or
before 15-8-59. In default, you will be
liable for summary assessment."
"Whereas I have reason to believe that
your total agricultural income from sources
chargeable to agricultural income-tax in the
year ending the 31st March, 1947 to 1959--
(a) has wholly escaped assessment;
(b) I therefore propose--
(i) to assess the said income that has escaped
assessment.
I hereupon require you to deliver to me
not later than 15-8-59 or within 30 days of
the receipt of this notice, a Return in the
attached form of your total agricultural
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 assess-
ment 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
648
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 Commis-
sioner 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. Prayer
made in the writ petitions was to quash the impugned assess-
ment orders dated June 22, 1961, the notices of demand dated
July 4, 1961 and the proclamation of sale dated December 31,
1964.
Form one of the notices ,addressed by the taxation
authorities to the appellant as well as from the return
filed on their behalf, it would appear that the taxation
authorities were not averse in the event of partition
among the members of the Hindu undivided family, to assess
the appellant in his individual capacity in respect of the
agricultural income arising from those tea estates which had
fallen to his share. Such a course, it seems, was also not
acceptable to the appellant. His stand at the same time was
that no assessment could be made in the name of Hindu
undivided family as according to him the same had been
disrupted as a result of partition. The appellant thus
wanted a complete imunity from payment of agricultural
income-tax during the years in question even though agricul-
tural income had arisen from tea estates.
Although a number of grounds were taken in the writ
petitions, at the hearing before the High Court only two
grounds were pressed on behalf of the appellant. The first
ground was that after the dissolution of the Hindu undivided
family, no assessment order could be made under the Act in
respect of such disrupted Hindu undivided family. The
second submission advanced on behalf of the appellant was
that in case it be held that the matter was covered by rule
23 reproduced above, in that event the said rule was ultra
vires the powers of the State Government to frame rules
under the Act. The High Court, as already mentioned, decided
on both the points in favour of the revenue and against
the appellant.
In appeal before us Mr. Sen on behalf of the appellant
has contended that the Hindu undivided family of which the
appellant was the Karta was disrupted on January 1, 1945.
It is urged, as was done before the High Court, that after
the disruption of that family, it could not be assessed
under the Act. Rule 23 reproduced above, according to the
learned counsel, is not attracted in the present case. In
case, however, it be held that the said rule applies to the
present case, the State Government, Mr. Sen submits, had no
power to make such a rule.
The above contentions have been controverted by Mr.
Chatterjee on behalf of the respondents. The learned coun-
sel has also emphasised the fact that in none of the commu-
nications sent by the appellant
649
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 conse-
quently 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 materi-
al 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 sec-
tion, 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 this Act
on the total agricultural income of the previous year of
every individual, Hindu undivided or joint family, company,
firm and other association of individuals. Section 19 of
the Act deals with the return of income and reads as under:
"19. (1) The Agricultural Income-tax
Officer shall, on or before the first day of
May or for the year commencing 1st April, 1939
any later day notified by the Government in
each year, give notice by publication in the
press and otherwise in the manner prescribed
by rules, requiring every person whose agri-
cultural income exceeds the limit of taxable
income prescribed in section 6 to furnish,
within such period not being less than thirty
days as may be specified in the notice, a
return, in the prescribed form and verified
in the prescribed manner, setting forth (along
with such other particulars as may be required
by the notice) his total agricultural income
during the previous year:
Provided that the Agricultural Income-tax
Officer may in his discretion extend the date
for the delivery of the return in the case
of any person or class of persons;
(2) In the case of any person whose total
agricultural income is, in the opinion of the
Agricultural Income-tax Officer, of such
amount as to render such person liable to
payment of agricultural income-tax for any
financial year the Agricultural Income-tax
Officer may serve in that financial year a
notice in the prescribed form upon him requir-
ing him to furnish, within the prescribed
period, a return in the prescribed manner
setting forth his total agricultural income
during the previous year.
(3) If any person has not furnished a
return within the time allowed by or under
sub-section (1 ), or sub-section
650
(2) or, having furnished a return under either
of those subsections, discovers any omission
or wrong statement therein, he may furnish a
return or a revised return, as the case may
be, at any time before the assessment is made,
and any return so made shall be deemed to be
made in due time under this section."
Section 20 provides for the making of an assessment order.
Section 30 deals with income escaping assessment, and its
material part reads as under:
"If for any reason any agricultural income
chargeable to agricultural income-tax has
escaped assessment for any financial year,
or has been assessed at too low a rate, the
Agricultural Income-tax Officer may, at any
time within three years of the end of that
financial year, serve on the person liable to
pay agricultural income-tax on such agricul-
tural income or, in the case of a company on
the prin cipal 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 provi-
sions of this Act shall, so far as may be,
apply accordingly as if the notice were a
notice issued under that sub-section :"
Section 5C) empowers the State Government to
make rules. The material part of that sec-
tion 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-
(a) ......
(b) ......
(c) ......
(d) ......
(e) ......
(f) ......
(g) ......
(h) ......
(i) ......
(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
651
family has been effected after the date of
such assessment;
(k) ......
(l) ......
(m) ......
We have set out above the relevant part of rule 23. The
rule clearly states that where an order apportioning the
liability to the tax on the basis of partition has not been
passed in respect of a Hindu family hitherto assessed as
undivided or joint, such family shall be deemed for the
purposes of the Act, to continue to be a Hindu undivided or
joint family. It would, therefore, follow that unless an
order apportioning the liability to the tax on the basis of
partition iS passed in respect of a Hindu undivided family
which was hitherto assessed as such undivided family, the
said family shall be deemed for the purpose of the Act to
continue to be a Hindu undivided family. Admittedly no
order apportioning the liability to the tax on the basis of
the alleged partition has been passed in respect of the
Hindu undivided family of which the appellant was the Karta.
As such, the aforesaid family shall continue to be treated,
for the purposes of the Act, as Hindu undivided family. We
are unable to subscribe to the submission of Mr. Sen that
the above rule would apply only in those cases where the
Hindu undivided family has already been assessed under the
Act and the only thing which remains is the recovery of the
tax in pursuance of the said assessment order. Such cases,
in our view, are covered by other part of rule 23. We are,
however, not concerned with that part. So far as the part
of rule 23 which has been reproduced above is concerned, its
language is clear and unambiguous. The language clearly
warrants the conclusion that in the absence of an order
apportioning the liability to the tax on the basis of parti-
tion in respect of a Hindu undivided family hitherto
assessed as undivided or joint, such family shall be deemed
for the purposes of the Act to continue to be a Hindu undi-
vided family.
As regards the second contention, Mr. Sen submits that
the power which has been conferred by clause (i) of sub-
section (2) of section 50 of the Act is to make rules pre-
scribing the manner in which the tax shall be payable when
the assessment is made on agricultural income of a Hindu
undivided or joint family and a partition of the property
of such family has been effected after the date of such
assessment. It is urged that apart from that, the State
Government has no power to make a rule for assessment of a
Hindu undivided 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 previ-
ous 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
652
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 affirma-
tive. What the rule contemplates is 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 pur-
poses of the Act to continue to be 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 associa-
tion of persons. Such a liability having already been
created by the above provision, rule 23 reproduced earlier
deals with the question as to who should be the person as
defined in the Act who should be assessed in respect of the
agricultural income arising from property in respect of
which Hindu undivided family was assessed hitherto. The
rule provides that such family shall continue to be deemed
as Hindu undivided family for the purposes of the Act
unless an order is made on the basis of the partition
amongst the members of the family. This is a matter of
detail to carry out the purposes of the Act and the State
Government, in our opinion, was well within its competence
to make the impugned rule in exercise of its powers under
sub-section (1) of section 50 of the Act.
There is also nothing novel in a Hindu undivided family
being taxed as such in spite of a claim of its disruption
unless an order on the basis of the partition is made by the
taxing authorities. Sub-. section (1) of section 171 of
the Income-tax Act 1961 provides that a Hindu undivided
family hitherto assessed as undivided shall be deemed for
the purposes of the Act to continue to be a Hindu undivided
family, except where and in so far as a finding of partition
has been given under that section in respect of the Hindu
undivided family. The fact that, unlike the Income-tax Act,
there is no statutory provision in the Act with which we are
concerned and the matter is dealt with by the rules
framed under the Act would not make any material differ-
ence. The rules would be as much binding as would be the
statutory provision in this respect. The only requirement
is that the rules should be validly made. in exercise of
the powers conferred by the Act. So far as this aspect is
concerned, we have already held above that the rule in
question was validly made as it was within the competence of
the State Government to make such rule.
The proposition is well settled that it is not unconsti-
tutional for the legislature to leave it to the executive to
determine details relating to the working of taxation laws,
such as the selection of persons on whom the tax is to be
levied the rates at which it is to be charged in respect of
different classes of goods and the like [see Pt. Banarsi Das
v. State of Madhya Pradesh(1)]. In that case this Court
dealt with the provisions of the Central Provinces and Berar
Sales Tax Act, 1947. The said Act provided for exemption
from taxation in res-
(1) [1950] S.C.R. 427.
653
pect 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. Appollo
Candle Company Limited(1) 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. In these circumstances, their Lord-
ships are of opinion that the judgment of the
Supreme Court was wrong in declaring section
133 of the Customs Regulations Act of ]879 to
be beyond the power of the Legislature."
In Syed Mohamed & Co. v. The State of Madras(2), the
question was as to the vires of rules 4 and 16 framed under
the Madras General Sales Tax Act. Section 5(vi) of that Act
had left it to the rulemaking authority to determine at
which single point in the series of sales by successive
dealers the tax should be levied, and pursuant thereto,
rules 4 and 16 had provided that it was the purchaser who
was liable to pay the tax in respect of sales of hides and
skins. The validity of the rules was attacked on the ground
that it was only the legislature that was competent to
decide who ’shall be taxed and that the determination of
that question by the rule-making authorities was altra
vires. The Madras High Court rejected this contention, and
held on a review of the authorities that the delegation of
authority under section 5(vi) was within permissible consti-
tutional Limits.
Powell’s case as well as the case of Syed Mohamed were
referred to with approval by this Court in the case of Pt.
Banarsi Das. The above decisions clearly lend support for
the conclusion arrived at by the High Court in the judgment
under appeal that the State Government was within its compe-
tence to make rule 23 reproduced above.
We, therefore, uphold the judgment of the High Court and
dismiss the appeals with costs. One set of fee
P.B.R. Appeals
dismissed.
(1) [1885] 10 A.C. 252.
(2) 3 S.T.C. 367.
654