Madhwa Ramachandra Mutalik vs Agricultural Income Tax Officer

Venkataramtah, J.—By consent of parties the petition is set down for hearing and disposed of today.

In this writ petition the petitioner has questioned the validity of a notice issued by the Agrl. ITO, Bijapur, calling upon him to produce certain books of account relating to the agricultural income which the joint family consisting of the petitioner and his sons had derived during the year of assessment 1973-74. During the assessment year 1973-74 a partition took place in the family of the petitioner and the family lands were divided amongst the petitioner and his sons. The parties to the partition were individually assessed by the Agrl. ITO under the provisions of the Karnataka Agrl. I.T. Act. But for the period up to the date of partition no order of assessment was passed in respect of the income which the family had derived. The Agrl. ITO, therefore, issued a notice to the petitioner calling upon him to produce the account books of the family in order to take action under s. 37 of the Act. The petitioner has questioned the validity of that notice in this writ petition.

Section 37 provides for the rectification of mistakes in the orders of assessment already passed by the Agrl. ITO. It does not provide for making a fresh assessment when the income in question has escaped assessment. In the statement of objections filed on behalf of the Agrl. ITO, it is admitted that in so far as the undivided family was concerned, no order of assessment had been made in respect of the income derived by it until the date of partition in the year 1973-74. In the facts and circumstances of this case, the action taken by the respondent under s. 37 to rectify the order of assessment is not tenable. The notice is, therefore, quashed.