Case: State Of Orissa Vs. Shyam Sundar Patnaik

1. 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.2. The respondent represents a joint Hindu family consisting of four members, relationship between whom is explained by the following table:3. Before the relevant years of account Jadimani, Biswambar and Bhagaban had died and Binod Behari, Puran Chandra, Shyam Sundar and Laxmindhar 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 Income-tax. 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.4. 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 milch cows maintained by the opposite party is not agricultural income so as to be assessed 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 leave5. 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 Commr of Income-tax, W. B., Calcutta, v. Raja Benoy Kumar Sahas Roy, (1957) 32 ITR 466 : ((S) AIR 1957 SC 768 )

Reasoning: 8. Binod Behari and Puran Chandra, sons of Biswambar 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 in 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 an artificial meaning as including 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