State Of Orissa vs Shyam Sundar Patnaik on 27 October, 1965

[Cites 1, Cited by 10]

Supreme Court of India

State Of Orissa vs Shyam Sundar Patnaik on 27 October, 1965

Equivalent citations: 1966 AIR 1271, 1966 SCR (2) 402

Bench: J.C. Shah, S.M. Sikri

           PETITIONER:
STATE OF ORISSA

	Vs.

RESPONDENT:
SHYAM SUNDAR PATNAIK

DATE OF JUDGMENT:
27/10/1965

BENCH:
SHAH, J.C.
BENCH:
SHAH, J.C.
SUBBARAO, K.
SIKRI, S.M.

CITATION:
 1966 AIR 1271		  1966 SCR  (2) 402


ACT:
Orissa	Agricultural Income-tax Act, 1947-Family  consisting
of sons of two deceased brothers whether Joint Hindu  family
for the purpose of Cl.	B of the Schedule to the  Act-Income
from  milk  derived from cows and  buffaloes  maintained  on
agricultural lands whether agricultural income.



HEADNOTE:
The  respondent represented a joint Hindu family  consisting
of  himself,  his  brother, and two  sons  of  his  father's
brother.  The joint family owned agricultural land, cows and
buffaloes.   Under s. 10 of the Orissa	Agricultural  Income
Tax Act, 1947, the income of joint Hindu family was normally
assessable  as	the income of one  individual;	but  certain
concessions were given in cl.  B. of the Schedule of the Act
to   a	joint  family  consisting  of  brothers	 only.	 The
Explanation to the Schedule stated that for -the purpose  of
the Schedule 'brother' included the son and the son of a son
of  a  brother,	 and  the  widow  of  a	 brother.   For	 the
assessment years 1950-51, 1951-52 and 1952-53 the  assessing
authorities  under the Act did not allow to the	 family	 the
benefit given by cl.  B of the Schedule and refused to treat
the  income  from  milk	 derived  from	cows  and  buffaloes
maintained  by the assessee family as  agricultural  income.
The  order  of	assessment was confirmed  by  the  Assistant
Collector but the Agricultural Income-tax Tribunal gave	 the
benefit	 of  the  rates in the Schedule to  the	 family	 and
treated	 the income from milk as agricultural income.  In  a
reference  the	High Court confirmed the views of  the	Tri-
bunal.	 The State of Orissa appealed to this Court  against
the High Court's order by special leave.
It  was	 urged	on behalf of the State	that  (1)  a  family
consisting  of	the sons of two brothers both of  whom	were
dead  was not a family consisting of "brothers	only"  under
cl.   B	 to  the  Schedule, (2) the  income   the,  milk  in
question was not agricultural income.
HELD : If by the Explanation clause the expression "brother"
has  been given an artificial meaning as inclusive,  of	 the
son and the son of a son of a brother, it would be difficult
to  regard  the family as not consisting of  brothers  only.
For the purpose of interpreting cl.  B Explanation (i)	must
be  incorporated in the expression "consisting	of  brothers
only"  and by so doing the conclusion is inevitable that  an
undivided  family consisting of sons of	 deceased  brothers,
for  the purpose of taxation under the	Orissa	Agricultural
Income-tax  Act,  would	 be regarded as	 one  consisting  of
"brothers only". [405 E-F]
The question whether income from milk derived from much cows
maintained  by	the  respondent's  family  was	agricultural
income was held to be. concluded by the court's decision  in
Commissioner  of Income-tax, West Bengal, Calcutta  v.	Raja
Benoy Kumar Sahas Roy, [1958] S.C.R. 101. [404 C]



JUDGMENT:

CIVIL, APPELLATE JURISDICTION : Civil Appeals Nos. 382 to 384 of 1964.

403

Appeals by special leave from the judgment and order dated August 20, 1962 of the Orissa High Court in S.J.Cs. Nos. 16, 17 and 18 of 1961.

S. V. Gupte, Solicitor-General and R. N. Sachthey, for the appellant.

The respondent did not appear.

The Judgment of the Court was delivered by Shah, J. These three appeals relate to proceedings for assessment of agricultural income-tax under the Orissa Agricultural Income-tax Act, 1947, for the years 1950-51, 1951-52 and 1952-53, and raise common questions. The respondent represents a joint Hindu family consisting of four members, relationship between whom is explained by the following table :

Jadimani Patnaik Biswamber Patnaik Bhagaban Patnaik Binod Puran- Shyam Laxmi-

Behari Chandra Sunder dhar Before the relevant years of account Jadimani, Biswambar and Bhagaban had died and Binod Behari, Puran Chandra, Shyam Sundar and Laxmidhar were the surviving members of the family. The joint family owned agricultural lands, cows and buffaloes. The assessing officer determined the income of the respondent for 1950-51 at Rs. 11,949, for 1951-52 at Rs. 10,850 and for 1953-54 at Rs. 9,549. In these sums were included in each year Rs. 200 as income derived by sale of milk of cows and buffaloes maintained by the family. The order of assessment was confirmed by the Assistant Collector of Agricultural Incometax. In appeals to the Agricultural Income-tax Tribunal, the amount of Rs. 200 in each year derived from sale of milk was excluded and the Tribunal gave to the respondent benefit of the rates prescribed in the Schedule to the Act.

At the instance of the State of Orissa the following questions were referred to the High Court under s. 29(2) of the Act (1) Whether in the facts and circumstances of the case the Tribunal is right in holding that income from milk derived from much cows maintained by the opposite party is not agricultural income so as to be assessed 404 to income-tax under the Agricultural Income- tax Act,1947.

(2)Whether in the facts and circumstances of the case the Tribunal is right in holding that the Hindu undivided family represented by Sri Shyam Sundar Patnaik in the instant case, is a Hindu undivided family consisting of brothers, only."

The High Court answered both the questions in the affirmative. The State of Orissa has preferred these appeals with special leave.

Before us the correctness of the answer recorded by the High Court on the first question is not challenged, because the question raised is concluded by the judgment of this Court in Commissioner of Income-tax, West Bengal, Calcutta v. Raja Benoy Kumar Sahas Roy(1).

The second question alone remains to be determined. Section 2(1) of the Orissa Agricultural Income-tax Act, 1947 ,defines "agricultural income". Section 3 defines the incidence of tax on Agricultural income. By s. 5 it was provided at the material time that agricultural income-tax shall be payable by every person whose total agricultural income of the previous year exceeds five thousand rupees. By s. 10 it is provided :

"(1) The total agricultural income of a Hindu undivided family shall be treated as the income of one individual and assessed as such "Provided that if a Hindu undivided family consists of brothers only as explained in the Schedule, the total agricultural income of the family shall be assessed at the rate specified in the Schedule.

(2)

Clause B of the Schedule prescribed the rates of agricultural income-tax in the case of every Hindu undivided family consisting of brothers only :

(a) If the share of a brother is five thousand rupees or less

(b) If the share of a brother exceeds five thousand rupees.

Three pies in the rupee.

The average rate applicable to the share of such brother if he were assessed as an individual.

(1) [1958] S.C.R. 101.

405

The Explanation to the Schedule states that for the purpose of the Schedule "brother" includes the son and the son of a son of a brother and the widow of a brother, and the "share of a brother" means the portion of the total agricultural income of a Hindu undivided family which would have been allotted to a brother if a partition of the property of such family had been made on the last day of the previous year. Binod Behari and Puran Chandra sons of Biswamber were brothers, and Shyam Sundar and Laxmidhar sons of Bhagaban were brothers. By the Explanation, the expression "brother" includes the son and the son of a son of a, brother. The learned Solicitor-General for the State of Orissa submitted that the four members of the respondent could not be regarded as brothers within the meaning of the Schedule Cl. B. The Solicitor-General concedes that if in the year of assessment, Biswambar and Bhagaban were living and were sought to be taxed as an undivided Hindu family, they could obtain the benefit of cl. B of the Schedule. Even if one of them had died before the year of account and the family consisted of the surviving brother and the sons of the deceased brother, the benefit of cl. B would, it is conceded, have been available. But, says the Solicitor- General, after the two brothers Biswambar and Bhagaban died, the family could not be regarded as consisting of brothers only. If, however, by the Explanation clause the expression "brother" has been given art artificial meaning- as inclusive of the son and the son of a son of a brother, it would be difficult to regard the family as not consisting of brothers only. For the purpose of interpreting cl. B, we must incorporate the Explanation (i) in the expression "consisting of brothers only" and by so doing the conclusion is inevitable that an undivided family consisting of sons of the deceased brothers, for the purpose of taxation under the Orissa Agricultural Income-tax Act would be regarded as one consisting of "brothers only".

The appeals therefore fail and are dismissed. There will be no order as to costs.

Appeals dismissed.

406

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