Deputy Commissioner of Sales Tax Vs. Venkitaswamy - Court Judgment

SooperKanoon Citationsooperkanoon.com/729324
SubjectDirect Taxation
CourtKerala High Court
Decided OnDec-21-2004
Case NumberT.R.C. No. 142 of 1997
Judge K.S. Radhakrishnan and; C.N. Ramachandran Nair, JJ.
Reported in(2005)195CTR(Ker)56; 2005(1)KLT840
ActsKerala Agricultural Income Tax Act, 1950 - Sections 9(2)
AppellantDeputy Commissioner of Sales Tax
RespondentVenkitaswamy
Appellant Advocate Georgekutty Mathew, Government Pleader
Respondent Advocate A. Krishnan, Adv.
DispositionRevision dismissed
Cases ReferredSeetharama Pillai v. Commissioner of A.I.T.
Excerpt:
- code of civil procedure, 1908.[c.a. no. 5/1908]. section 100-a [as substituted by c.p.c. amendment act, 2002]: [v.k. bali, cj, kurian joseph & k. balakrishnan nair, jj] applicability held, section is not retrospective. all appeals filed prior to 1.7.2002 are competent. but subsequent to 1.7.2002 intro court appeals against judgment of single judge is not maintainable. provisions of section 100-a, c.p.c., will prevail over the provisions contained in the kerala high court act, 1959. k.s. radhakrishnan, j.1. question that is posed for consideration in this case is whether transfer of ancestral property to a minor daughter is hit by provisions of section 9(2) of the a.i.t. act 1950. tribunal took the view that the transfer of the ancestral property by the assessee to his minor daughter is not hit by provisions of section 9(2) of the agricultural income tax act and the income therefrom cannot be part of the net assessable income of the assessee.2. assessee had filed a return for the year 1977-78 excluding the income from 9.25 acres of land which was transferred in the name of his minor daughter. the assessing authority however, clubbed the income from the property given to the minor daughter and ordered to levy tax. matter was taken up before the commissioner, who directed the assessing officer to exclude the property transferred to the minor child. the revenue took up the matter before the tribunal and the appeal was dismissed. the revenue is aggrieved by those orders and hence this revision. the revenue took up the stand that section 9(2) would apply only to an individual and not to a joint hindu family and it would apply only to a transfer of the individual's own separate property and not to the transfer by him of joint family property. section 9(2) stipulates that in computing the total agricultural income of any individual for the purpose of assessment, there shall be included so much of the agricultural income of a wife or minor child of such individual as arises directly or indirectly from assets transferred directly or indirectly to the minor child not being a married daughter, by such individual otherwise than for adequate consideration. it is the case of the assessee that the property involved in this case are the ancestral properties and so, the daughter has a legitimate right to have a share in the family property and so there is no illegality or impropriety in gifting the said share to the daughter by the father at his life time and the provisions contained in section 9(2) of the agricultural income tax will not attract to such transactions. the assessee also brought to our knowledge a decision of this court in t.r.c. no. 107 of 1992 wherein identical question came up for consideration. in that case this court upheld the order of the tribunal to separately assess the minor child to agricultural income tax in respect of the income derived from the property transferred to the minor child as per the partition deed dated 16.5.1978. in this connection we may refer to the decision in seetharama pillai v. commissioner of a.i.t. : [1979]117itr705(mad) where in it has been held that section 9(2) would apply only to an individual and not to a joint hindu family and it would apply to a transfer of the individual's own separate property and not to the transfer by him of joint family property. that being the legal position we find no reason to take a different view from that of the judgment in t.r.c. 107 of 1992.revision lacks merits and the same would stand dismissed.
Judgment:

K.S. Radhakrishnan, J.

1. Question that is posed for consideration in this case is whether transfer of ancestral property to a minor daughter is hit by provisions of Section 9(2) of the A.I.T. Act 1950. Tribunal took the view that the transfer of the ancestral property by the assessee to his minor daughter is not hit by provisions of Section 9(2) of the Agricultural Income Tax Act and the income therefrom cannot be part of the net assessable income of the assessee.

2. Assessee had filed a return for the year 1977-78 excluding the income from 9.25 acres of land which was transferred in the name of his minor daughter. The Assessing Authority however, clubbed the income from the property given to the minor daughter and ordered to levy tax. Matter was taken up before the Commissioner, who directed the Assessing Officer to exclude the property transferred to the minor child. The revenue took up the matter before the Tribunal and the appeal was dismissed. The revenue is aggrieved by those orders and hence this revision. The revenue took up the stand that Section 9(2) would apply only to an individual and not to a joint Hindu family and it would apply only to a transfer of the individual's own separate property and not to the transfer by him of joint family property. Section 9(2) stipulates that in computing the total agricultural income of any individual for the purpose of assessment, there shall be included so much of the agricultural income of a wife or minor child of such individual as arises directly or indirectly from assets transferred directly or indirectly to the minor child not being a married daughter, by such individual otherwise than for adequate consideration. It is the case of the assessee that the property involved in this case are the ancestral properties and so, the daughter has a legitimate right to have a share in the family property and so there is no illegality or impropriety in gifting the said share to the daughter by the father at his life time and the provisions contained in Section 9(2) of the Agricultural Income Tax will not attract to such transactions. The assessee also brought to our knowledge a decision of this Court in T.R.C. No. 107 of 1992 wherein identical question came up for consideration. In that case this Court upheld the order of the Tribunal to separately assess the minor child to agricultural income tax in respect of the income derived from the property transferred to the minor child as per the partition deed dated 16.5.1978. In this connection we may refer to the decision in Seetharama Pillai v. Commissioner of A.I.T. : [1979]117ITR705(Mad) where in it has been held that Section 9(2) would apply only to an individual and not to a joint Hindu family and it would apply to a transfer of the individual's own separate property and not to the transfer by him of joint family property. That being the legal position we find no reason to take a different view from that of the judgment in T.R.C. 107 of 1992.

Revision lacks merits and the same would stand dismissed.