Case: Sashi Prasad Barooah Vs. The Agriculture Income-Tax Officer, Shillong,Assam &amp; Ors

in our opinion, should be in the affirmative. What the rule contemplates in that unless an order was made on the basis of the alleged partition of a Hindu undivided family, such family shall be deemed for the purposes of the Act to continue to be a Hindu undivided family. The rule thus relates to the working of the Act. Section 3 of the Act is the charging section and creates liability for tax in respect of the total agricultural income of every individual, Hindu undivided family, firm and other association of persons. Such a liability having already been created by the above provision, rule 23 reproduced earlier deals with the question as to who should be the person as defined in the Act who should be assessed in respect of the agricultural income arising from property in respect of which the Hindu undivided family was assessed hitherto. The rule provides that such family shall continue to be deemed as Hindu undivided family for the purposes of the Act unless an order is made on the basis of the partition amongst the members of the family. This is a matter of detail to carry out the purposes of the Act and the State Government, in our opinion, was well within its competence to make the impugned rule in exercise of its powers under sub-section (1) of section 50 of the ActThere is also nothing novel in a Hindu undivided family being taxed as such in spite of a claim of its disruption unless an order on the basis of the partition is made by the taxing authorities. Sub-section (1) of section 171 of the Income-tax Act, 1961, provides that a Hindu undivided family hitherto assessed as undivided shall be deemed for the purposes of the Act to continue to be a Hindu undivided family, except where and in so far as a finding of partition has been given under that section in respect of the Hindu undivided family. The fact that, unlike the Income-tax Act, there is no statutory provision in the Act with which we are concerned and the matter is dealt with by the rules framed under the Act would not make any material difference. The rules would be as much binding as would be the statutory provision in this respect. The only requirement is that the rules should be validly made in exercise of the powers conferred by the Act. So far as this aspect is concerned, we have already held above that the rule in question was validly made as it was within the competence of the State Government to make such rule. 12. The proposition is well settled that it is not unconstitutional for the legislature to leave it to the executive to determine details relating to the working of taxation laws, such as the selection of persons on whom the tax is to be laid, the rates at which it is to be charged in respect of different classes of goods, and the like (See Pt. Banarsi Das Bhanot v. State of Madhya Pradesh [1958] 9 STC 388 (SC)). In that case this court dealt with the provisions of the Central Provinces and Berar Sales Tax Act, 1947. The said Act provided for exemption from taxation in respect of the supply of certain material. Power was also conferred upon the State Government to amend such exemption by notification. This court upheld the validity of that notificationWe may also refer to the case of Powell v. Apollo Candle Company Ltd. [1885] 10 App Cas 282, 291 (PC), which dealt with section 133 of the Customs Regulation Act of 1879 of New South Wales. That section conferred a power on the Governor to impose tax on certain articles of import. While repelling the challenge to the constitutional validity of that provision, the Privy Council observed" It is argued that the tax in question has been imposed by the Governor, and not by the Legislature, who alone had power to impose it. But the duties levied under the Order in Council are really levied by the authority of the Act under which the order is issued. The Legislature has not parted with its perfect control over the Governor, and has the power, of course, at any moment, of withdrawing or altering the power which they have entrusted to him. Under these circumstances, their Lordships are of opinion that the judgment of the Supreme Court was wrong in declaring section 133 of the Customs Regulations Act of 1879 to be beyond the power of the Legislature." 13. In V. M. Syed Mohamed & Co. v. State of Madras [1952] 3 STC 367 (Mad) the question was as to the vires of rules 4 and 16 framed under the Madras General Sales Tax Act. Section 5(vi) of that Act had left it to the rule-making authority to determine at which single point in the series of sales by successive dealers the tax should be levied, and pursuant thereto, rules 4 and 16 had provided that it was the purchaser who was liable to pay the tax in respect of sales of hides and skins. The validity of the rules was attacked on the ground that it was only the legislature that was competent to decide who shall be taxed, and that the determination of that question by the rule-making authorities was ultra vires. The Madras High Court rejected this connection, and held on a review of the authorities that the delegation of authority under section 5(vi) was within permissible constitutional limitsowells case [1885] 10 App Cas 282 (PC) as well as the case of V. M. Syed Mohamed [1952] 3 STC 367 (Mad) were referred to with approval by this court in the case of Pt. Banarsi Das Bhanot [1958] 9 STC 388 (SC). The above decisions clearly lend support for the conclusion arrived at by the High Court in the judgment under appeal that the State Government was within its competence to make rule 23 reproduced above. 14.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]After giving the matter our consideration, we are of the opinion that the two contentions advanced by Mr. Sen on behalf of the appellant are not well-founded. It is consequently not necessary for us to go into the question as to what is the effect of the omission of the appellant to refer to the partition in the communications sent by him to the Agricultural Income-tax OfficerThe rule clearly states that where an order apportioning the liability to the tax on the basis of partition has not been passed in respect of a Hindu family hitherto assessed as undivided or joint, such family shall be deemed for the purposes of the Act, to continue to be a Hindu undivided or joint family. It would, therefore, follow that unless an order apportioning the liability to the tax on the basis of partition is passed in respect of a Hindu undivided family which was hitherto assessed as such undivided family, the said family shall be deemed for the purpose of the Act to continue to be a Hindu undivided family. Admittedly, no order apportioning the liability to the tax on the basis of the alleged partition has been passed in respect of the Hindu undivided family of which the appellant was the karta. As such, the aforesaid family shall continue to be treated, for the purposes of the Act, as Hindu undivided family. We are unable to subscribe to the submission of Mr. Sen that the above rule would apply only in those cases where the Hindu undivided family has already been assessed under the Act and the only thing which remains is the recovery of the tax in pursuance of the said assessment order. Such cases, in our view, are covered by the other part of rule 23. We are, however, not concerned with that part. So far as the part of rule 23 which has been reproduced above is concerned, its language is clear and unambiguous. The language clearly warrants the conclusion that in the absence of an order apportioning the liability to the tax on the basis of partition in respect of a Hindu undivided family hitherto assessed as undivided or joint, such family shall be deemed for the purposes of the Act to continue to be a Hindu undivided familyThe answer to this question, in our opinion, should be in the affirmative. What the rule contemplates in that unless an order was made on the basis of the alleged partition of a Hindu undivided family, such family shall be deemed for the purposes of the Act to continue to be a Hindu undivided family. The rule thus relates to the working of the Act. Section 3 of the Act is the charging section and creates liability for tax in respect of the total agricultural income of every individual, Hindu undivided family, firm and other association of persons. Such a liability having already been created by the above provision, rule 23 reproduced earlier deals with the question as to who should be the person as defined in the Act who should be assessed in respect of the agricultural income arising from property in respect of which the Hindu undivided family was assessed hitherto. The rule provides that such family shall continue to be deemed as Hindu undivided family for the purposes of the Act unless an order is made on the basis of the partition amongst the members of the family. This is a matter of detail to carry out the purposes of the Act and the State Government, in our opinion, was well within its competence to make the impugned rule in exercise of its powers under sub-section (1) of section 50 of the ActThere is also nothing novel in a Hindu undivided family being taxed as such in spite of a claim of its disruption unless an order on the basis of the partition is made by the taxing authorities. Sub-section (1) of section 171 ofthe Income-tax Act, 1961, provides that a Hindu undivided family hitherto assessed as undivided shall be deemed for the purposes of the Act to continue to be a Hindu undivided family, except where and in so far as a finding of partition has been given under that section in respect of the Hindu undivided family. The fact that, unlike the Income-tax Act, there is no statutory provision in the Act with which we are concerned and the matter is dealt with by the rules framed under the Act would not make any material difference. The rules would be as much binding as would be the statutory provision in this respect. The only requirement is that the rules should be validly made in exercise of the powers conferred by the Act. So far as this aspect is concerned, we have already held above that the rule in question was validly made as it was within the competence of the State Government to make such ruleThe above decisions clearly lend support for the conclusion arrived at by the High Court in the judgment under appeal that the State Government was within its competence to make rule 23 reproduced above