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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

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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

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             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

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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