State of Orissa Vs. Shyam Sundar
Patnaik  INSC 230 (27 October 1965)
27/10/1965 SHAH, J.C.
CITATION: 1966 AIR 1271 1966 SCR (2) 402
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
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 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,  S.C.R. 101. [404 C]
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 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.
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 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
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
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
Three pies in the rupee.
The average rate applicable to the share of
such brother if he were assessed as an individual.
(1)  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
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 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
The appeals therefore fail and are dismissed.
There will be no order as to costs.