S.VELU PILLAI,J. -
(1.) O .P.471 of 1960 which was referred to a Division Bench and with which this petition is connected,has been disposed of and so this petition has been returned for disposal by a single Judge.This petition is to quash the assessment of the,petitioner to agricultural income -tax for the assessment year 1957 -58.The petitioner made a return as managing proprietor,of the whole agricultural income from certain properties for the relevant accounting year,in the status of a tenant -in -common.The properties originally belonged to the petitioner's father Paul Louis,who constituted a trust in respect of them by a registered deed of the year 1110 in favour of his wife and his three sons,including the petitioner.The Agricultural Income - tax Officer,did not accept the status as tenant -in -common claimed by the petitioner,held that under the deed of trust the whole income belonged solely to his mother who died only later and assessed the petitioner as an individual under Section 3(1 )(a)of the Agricultural Income -tax Act of 1950 ;,which must be a mistake for section 8(1 )(a ),which provides for vicarious assessments.
(2.) ON appeal by the petitioner,the Commissioner of Agricultural Income - tax and Sales -tax,Kottayam held on a construction of the trust deed,that, the said trust is a separate legal entity and that the manager of the trust is in charge of the entire estate and received the whole income as an individual.
and confirmed the assessment on the petitioner,presumably on the footing that he is a manager.On further appeal,the Agricultural Income -tax Appellate Tribunal,observing that the petitioner,
was assessed in this case in respect of the agricultural income from the trust Louis estate as the manager of Mrs.Mary Paul Louis ;,
held on a construction of the deed of trust that
Mrs.Mary P.Louis is solely entitled to the income from the estate during her lifetime and that the appellant(petitioner)and his brothers have no manner of right to the income during her life.It is only after her death that they can take the income from the property
and confirmed assessment.
The case of the petitioner that there was a sharing of the income of the properties between him,his mother,and brothers,was negatived.The petitioner made infructuous applications for a reference to the High Court under section 60 of the Act,which were dismissed as time -barred.This petition for quashing the assessment was pressed on the sole ground,that the assessment of the petitioner on what has been found to be the income of his mother,was without jurisdiction.
(3.) THERE can be no doubt,that an assessment on A for B's income,except to extent sanctioned by law is without jurisdiction.Section 8(1 )(a)of the Act so far as it is relevant to the present controversy,reads:
In the case of agricultural income taxable under this Act which ¦¦ ;.any receiver,, administrator,executor,trustee,guardian or manager appointed by or under any law or by an order of court or by written agreement is entitled to receive on behalf of any person,the tax shall be levied upon and recoverable...... from such receiver,administrator, executor,trustee,guardian or manager,as the case may be,in like manner and to the same amount as it would be leviable upon and recoverable from the person on whose behalf such agricultural income is receivable,and all the provisions of this Act shall apply accordingly.
The assessment of the petitioner on his mother's income purports to have been made in his capacity as manager,but omitting those parts which are not relevant,the section speaks of a manager appointed by written agreement ;.Without finding that the petitioner has been appointed by written agreement,section 8(1 )(a)would not be attracted.The petitioner made the return as managing proprietor,consistently with his case that he was a co -owner,but this is not to say,that he was the manager appointed by his mother by written agreement.ƒ
There was a passing reference by the Appellate Tribunal to section 2(m)of the Act which defines a ˜person ™so as to include a common manager.This is only a definition section.A common manager is one who manages on behalf of more than one,though in the setting in which the term is employed in section 2(m ),it may include one who is himself a part -owner and also manages on behalf of another.However,on the finding that the income belongs to the mother alone,there is no need to consider this provision.It is sufficient to hold that the assessment of the petitioner as the manager of his mother,not as a manager appointed by a written agreement,on his mother's income,is not sanctioned by section 8(1 )(a)of the Act and is without jurisdiction.
It therefore follows,that the assessment of the petitioner on his mother's income has to be quashed.The petitioner's learned counsel stated before me,that the petitioner has no objection to his being assessed on the whole income,but under section 3(5)of the Act as a tenant -in -common pursuant to the notice already issued to him,upon which he made the return.Of course this remedy is open to the Department in any case,if it chooses to pursue it.Even in reassessment proceedings against the petitioner,if the Department has a case that the petitioner was appointed manager by written agreement,this order shall not preclude an enquiry into it.
The present assessments on the petitioner are quashed.No costs.;