Ramanujam, J.
1. These tax cases are filed by four brothers who are assessees under the Tamil Nadu Agricultural Income-tax Act against the order of the Commissioner of Agricultural Income-tax, Board of Revenue, dated November 8, 1976, in relation to two assessment years.
2. For the assessment years 1970-71 and 1971-72, the petitioners claimed that they were holding the lands as tenants-in-common. The Agricultural Income-tax Officer accepted the claim and treating them as tenants-in-common, held that as their holdings are within the exemption limit, no tax was leviable by orders dated July 15, 1971, and June 22, 1972. However, the Commissioner of Agricultural Income-tax took the view that the petitioners have been wrongly assessed in the status of tenants-in-common and, therefore, initiated suo motu revisional proceedings under section 34 of the Travancore-Cochin Agricultural Income-tax Act, 1950, to set aside the said orders of the Agricultural Income-tax Officer for the two assessment years and to pass revised assessments for those years in the name of the eldest brother in the status of a Hindu undivided family. In reply to the show cause notice dated February 12, 1976, the petitioners filed their objections dated March 29, 1976, inter alia, contending that the suo motu revisional proceedings initiated under section 34 of the Travancore-Cochin Agricultural Income-tax Act, 1950, is not sustainable in law as the said Act had been repealed by the Tamil Nadu Act 18 of 1972, with effect from April 1, 1972 that thereafter, the Tamil Nadu Act alone applies, that under the Tamil Nadu Act, no suo motu preceedings can be preferred after a lapse of three years after the date of the respective assessment orders, that, therefore, the suo motu revisional proceedings are not maintainable, that whether the petitioners had got divided in status is a question of fact and that having been accepted by the assessing authority, the status cannot be changed from tenants-in-common to Hindu undivided family.
3. The Commissioner, by his order dated November 8, 1976, rejected all the contentions of the petitioners stating that the show-cause notice issued for the assessment years 1970-71 and 1971-72 had been made only under the Travancore-Cochin Agricultural Income-tax Act, 1950, that for taking subsequent action for those assessment years, the provisions of the Travancore-Cochin Agricultural Income-tax Act can alone be applied. He also held that the assessments made under the Travancore-Cochin Agricultural Income-tax Act are final subject to a revision under the provisions of the said Act, and that there is no time-limit for taking suo motu action under section 34 of the Travancore-Cochin Agricultural Income-tax Act, since the operation of that Act has been continued even after repeal in view of the saving provision contained in section 9(1). The correctness of the said order of the Commissioner of Agricultural Income-tax has been questioned by the petitioners before us. Thus, the two questions that arise for our consideration are, (1) whether the provisions of the Travancore-Cochin Agricultural Income-tax Act, 1950, are applicable to the transferred territories even after the said Act has been repealed by the Repealing Act with effect from April 1, 1958, so as to enable the Board of Revenue to exercise the suo motu power even after three years, and (2) whether the petitioners are to be assessed as tenants-in-common or whether they are to be assessed as members of a Hindu undivided family
4. In this case, the facts are not in dispute. The first petitioner, R. Eswara Iyer, was an assessee on the books of the Agricultural Income-tax Officer, Tenkasi, in the status of an individual member up to the assessment year 1969-70. However, during the year 1970-71, he had stated before the Agricultural Income-tax Officer that the properties held by him and his brothers were ancestral and the income and expenditure in relation to the same were shared by them equally and that, therefore, they must be treated as tenants-in-common on the basis of the returns filed by them. Accordingly, the Agricultural Income-tax Officer treated them as tenants-in-common by an order dated July 15, 1971, for the assessment year 1970-71 and by an order dated June 22, 1972, for the assessment year 1971-72. The Commissioner of Income-tax, Board of Revenue, after perusing the orders of the Agricultural Income-tax Officer for these two years, felt that the 1st petitioner, R. Eswara Iyer, being the eldest brother, should be assessed as Hindu undivided family, for the properties in question have always been properties belonging to the joint family and, therefore, they should be assessed as such. He, therefore, caused a show-cause notice to be issued as to why the assessment should not be modified.
5. The main contention of the petitioner is that no suo motu revisional proceedings could be initiated in respect of the assessment years 1970-71 and 1971-72 beyond the three years period mentioned in section 34 of the Tamil Nadu Act and that any suo motu power should be exercised before the expiry of the three years from the date of both the assessment orders as per the Tamil Nadu Agricultural Income-tax Act which has replaced the Travancore-Cochin Act in so far as it relates to the transferred areas. It is not in dispute that section 34 of the Travancore-Cochin Act did not provide for any time-limit before which the assessment has to be completed. It is also common ground that the lands in question are situated in Puliyarai and Shencottah villages which are within the transferred are as under the provisions of the States Re-organisation Act, 1956. In respect of these villages, which can properly be called 'the transferred areas', the Travancore-Cochin Act, 1950, was applicable up to 1958. Thereafter, the Tamil Nadu Act was made applicable to the transferred areas and the Travancore-Cochin Agricultural Income-tax Act, 1950, had been repealed. But there is a saving clause, section 9 which saves the operation of the Travancore-Cochin Act in respect of proceedings already initiated under the Travancore-Cochin Act which had to be completed, as if the said repeal had not taken place and the Tamil Nadu Act had not come into operation. Section 34 of the Travancore-Cochin Act of 1950 enabled the Commissioner of Agricultural Income-tax to call for the record of any proceeding under that Act which has been taken by any authority subordinate to him and to pass such orders thereon as he thinks fit. The said section 34 does not provide for any time-limit under which the power under section 34 has to be exercised. Section 34 of the Tamil Nadu Act, however, contains a limitation on the revisional power and it provides that the suo motu powers have to be exercised within three years from the date of order of assessment. The Travancore-Cochin Act was repealed by the Tamil Nadu Act 18 of 1972 with effect from April 1, 1972, and from that date onward, the Tamil Nadu Agricultural Income-tax Act applies to the transferred are as and the provisions of the Travancore-Cochin Agricultural Income-tax Act had ceased to apply. However, the Tamil Nadu Act 18 of 1972 contained a saving section, namely, section 9(1)(d). According to that section, though the provisions of the Travancore-Cochin Act, 1950, had ceased to apply to the transferred areas and it is the Tamil Nadu Agricultural Income-tax Act, 1972, that had been made applicable to these areas, section 9 has chosen to keep alive the provisions of the Travancore-Cochin Act for certain purposes specified therein. If the Travancore-Cochin Act, 1950, is saved by section 9 in the matter of suo motu revision of assessments under section 34, then suo motu revision could be made without any limit of time as section 34 of the Travancore-Cochin Act did not provide for any limitation. According to the Commissioner of Income-tax, in respect of assessments already made, they are subject to the revisional powers under section 34 of the Travancore-Cochin Act and the operation of the Travancore-Cochin Act should be taken to be saved in respect of the assessments made under that Act by virtue of the specific saving provision under section 9. Thus, the substantial question to be considered on this aspect of the case is as to the scope and ambit of section 9(1) (d) which has been invoked by the Commissioner of Agricultural Income-tax to initiate revisional proceedings under the Tamil Nadu Agricultural Income-tax Act which has been now made applicable to the transferred territories.
6. Section 9(1) (d) of the Tamil Nadu Act 18 of 1972 relied on for invoking the power under section 34 of the Travancore-Cochin Act is as follows :
'9. Savings. - (1) The repeal by section 8 of any corresponding existing law shall not affect -......
(d) any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, fine, penalty, forfeiture, or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such fine, penalty, forfeiture or punishment, may be imposed as if this Act had not been passed.'
7. The assessees' contention is that section 9(1) (d) can be applied only in cases where rights and liabilities had already accrued, that section 9(1) (d) proceeds only on the basis that only in respect of the rights and liabilities already accrued under the Travancore-Cochin Act (sic) and that the said Act should not be taken to continue in respect of revisional proceedings which are being initiated by the Commissioner after the coming into force of the Tamil Nadu Act 18 of 1972.
8. The petitioners place reliance on the decision of a Full Bench of the Andhra Pradesh High Court in Allied Exports and Imports v. State of Andhra Pradesh [1971] 28 STC 175, wherein on more or less similar facts, the court had held that the right to tax and liability to pay were subsisting and were saved under section 14(4A) notwithstanding the period of limitation, it was the new Act that would apply to the case and, therefore, the assessing authority was well within its jurisdiction in initiating and concluding the proceedings for reassessment within the time prescribed by the repealing Act. There the assessee was assessed for a period up to September 30, 1958. Subsequently, the assessing authority issued on February 24, 1961, a notice of reassessment and assessed the petitioner on an additional turnover as escaped turnover by its order dated March 31, 1963. During the assessment year 1956-57, it was the Madras General Sales Tax Act, 1939, that was in force and under rule 17 of the Madras General Sales Tax Rules, 1939, the assessing authority could have reopened the assessment only within three years next succeeding the assessment year. On June 15, 1957, the Andhra Pradesh General Sales Tax Act, 1957, came into force and it repealed the Madras Act. Section 14(4) of that Act provided for a period of four years for reopening the assessment. Section 14(4) was also amended with retrospective effect from June, 15, 1957, and the amended provision provided a period of six years for reassessment in the case of default on the part of the dealer. The assessee contended that section 14(4A) of the Andhra Pradesh General Sales Tax Act will not apply to the case and that, as the assessment year 1956-57 ended before the Andhra Pradesh Act, 1957, came into force, it was the Madras Act of 1939 which was applicable and, therefore, the order of reassessment dated March 31, 1963, was barred by time under rule 17. But this was rejected by the Full Bench on the ground that the power to reassess under rule 17 of the Rules made under the repealed Act had not expired on the date when the repealing Act came into force, that it was the new Act that would apply and, therefore, the enlarged period provided for under the new Act that would apply and the proceedings for reassessment were within the time prescribed under the new Act. However, the said decision of the Full Bench is based on the fact that before the time provided under the old Act to make any reassessment could expire, the new Act giving a larger period of limitation had come into force and, therefore, the assessing authority has the power to revise the assessment within the enlarged period provided under the new Act. The facts in that case are not on all fours with the facts of this case.
9. It is seen that, under identical circumstances, the Andhra Pradesh High Court in S. L. Ramanatham v. Commissioner of Commercial Taxes [1969] 23 STC 249, had held that in view of the saving clause contained in the repealing Act, the repealed Act could be operative in respect of the rights and liabilities that accrue under that Act. In that case, the assessee submitted his monthly returns for the year ending March 31, 1957, under the Hyderabad General Sales Tax Act, 1950. On June 15, 1957, the Andhra Pradesh General Sales Tax, 1957, came into force and it repealed the Hyderabad General Sales Tax Act. On March 14, 1958, a notice was given to the assessee and on March 17, 1958, an assessment order was made on him applying the rates under the Hyderabad General Sales Tax Act and this order was communicated to him on July 8, 1958. On September 10, 1963, the Commissioner of Commercial Taxes proposed to revise the assessment on the ground that certain cotton sales turnover was erroneously exempted from tax by the assessing authority. The proposal to revise was challenged on the ground that as the assessment was made under the Andhra Pradesh General Sales Tax Act, 1957, the proposed revision was time-barred under section 20(3) of that Act as it was beyond four years from the date of the order of assessment served on him. The court took note of the fact that under section 15 of the Hyderabad General Sales Tax Act, no period of limitation was prescribed for exercising the suo motu power of revision and stated that as the rights and liabilities as to assessment in accordance with the provisions of the Hyderabad General Sales Tax Act had accrued or were incurred by the time the Andhra Pradesh General Sales Tax Act came into force, they are unaffected by the proviso to section 41 of the Andhra Pradesh General Sales Tax Act which repealed the Act and specifically provided that the said repeal shall not affect the previous operation of the said Acts or section or any right, title, obligation or liability already acquired, accrued or incurred thereunder. This decision of the Andhra Pradesh High Court is in accordance with the decision of the Supreme Court in Swastik Oil Mills Ltd. v. H. B. Munshi, Deputy Commissioner of Sales Tax [1968] 21 STC 383, where the assessee was assessed to sales tax under the Bombay Sales Tax Act, 1946. The said Act was, however, repealed by the Bombay Sales Tax Act, 1953, which was in turn repealed by the Bombay Sales Tax Act, 1959. However, the repeal of the Act of 1953 by the Act of 1959 did not affect the rights and liabilities of the assessee to tax under the Act of 1953 or the Act of 1946, in respect of the turnover which became liable to sales tax under the Act of 1946. In respect of the assessments made under the Bombay Sales Tax Act, 1946, the Deputy Commissioner proposed to revise the assessment suo motu under section 22 of the Act of 1946. When that proposal was challenged on the ground that it was beyond the time prescribed under the Bombay Sales Tax Act, 1959, the court held that as there was no prescribed time provided either under section 22 of the Bombay Sales Tax Act, 1946, or under section 31 of the Bombay Sales Tax Act, 1953, the Deputy Commissioner was competent to initiate suo motu revisional proceedings, notwithstanding the fact that section 57 of the Bombay Sales Tax Act, 1959, had prescribed a period of five years from the date of the order sought to be revised. The Supreme Court, in support of its conclusion, relied on section 77 of the said Act of 1959 which had saved the operation of the Acts of 1947 and 1953 for purposes mentioned in that section and that those purposes included levy, assessment, reassessment and collection of sales tax, so that the proceeding against the assessee which had been initiated under the Act of 1946 continued to be governed by the provisions of that Act. The court also referred to sections 7(c) and 7(e) of the Bombay General Clauses Act, 1904. In the case before us, section 9(1) (d) corresponds to section 7(1) (e) of the Bombay Sales Tax Act dealt with by the Supreme Court. In view of the said decision of the Supreme Court, the order of the Commissioner, which is challenged in this appeal, is legally sustainable.
10. The learned counsel for the assessees then contends that even if the Travancore-Cochin Act, 1950, is applicable to the suo motu revisional proceedings and not the provisions of the Tamil Nadu Act 18 of 1972 and the revisional authority can revise the orders at any time without any limitation, the power has to be exercised within a reasonable time as has been held by the Supreme Court in S. B. Gurbaksh Singh v. Union of India [1976] 37 STC 425 and that as, in this case, the power has been exercised beyond the reasonable time, the revisional order should be set aside. In Gurbaksh Singh's case [1976] 37 STC 425, the Supreme Court had held that although no limitation had been provided for the exercise of the suo motu power of revision by the Commissioner under section 20(3) of the Bengal Finance (Sales Tax) Act, 1941, as extended to the Union Territory of Delhi, the revisional authority has to initiate the proceedings within a reasonable time and any unreasonable delay in its exercise may affect its validity and that, what is a reasonable time will, however, depend upon the facts of each case. In that case, the assessment had been made on November 23, 1959, for the assessment year 1955-56. The Commissioner, in exercise of his suo motu power under section 20(3), issued a notice to the assessee on July 21, 1960, and revised the order directing a fresh assessment to be made. On those facts, the court held that even assuming that the revisional powers could not be exercised after an unduly long delay, the Commissioner in that case has exercised his power without any undue or unreasonable delay. We are not in a position to accept the contention of the learned counsel based on the said decision of the Supreme Court that the revisional power in this case has been exercised after a long and undue or unreasonable delay. As pointed out by the Supreme Court, what is a reasonable period during which the suo motu power of revision could be exercised should depend upon the circumstances of each case. We are, therefore, not in a position to say that the power has been exercised after an undue and unreasonable delay.
11. The learned counsel for the assessees then contends that in any event the decision of the Commissioner of Agricultural Income-tax on merits is quite untenable. According to the learned counsel, the petitioners having chosen to file the returns in the status of tenants-in-common, they cannot be assessed in the status of members of a Hindu undivided family and that the filing of all the returns in the status of tenants-in-common should be taken as an act amounting to declaration of division in status. However, on the facts of this case, it is not possible to accept the contention of the learned counsel. The properties were originally held by the petitioners' father as ancestral and after his death, they continued to be ancestral in the hands of the petitioners. It is not claimed that there has been a partition between the brothers at any time. Therefore, the joint family should be taken to continue until an actual division takes place. According to the petitioners' learned counsel, a division in status is sufficient to treat them as divided members of a Hindu undivided family even though there has been no partition by metes and bounds. Admittedly, the properties in this case are held and enjoyed in common. From the mere fact that the income is divided between the petitioners, it is not possible to treat them as divided members of a Hindu undivided family so long as there is no division by metes and bounds. Thus, the Commissioner of Agricultural Income-tax appears to be right in holding that the assessment of the petitioners should be only in the name of the 1st petitioner as representing the Hindu undivided family. In this view of the matter, we are not in a position to interfere with the order of the Commissioner of Agricultural Income-tax, Board of Revenue. The tax cases are, therefore, dismissed. There will, however, be no order as to costs.