TaxTMI 
TaxTMI 
1965 (10) TMI 72
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....as accepted by the judgment delivered by a Division Bench of this court on the 21st July, 1961. On appeals preferred against that judgment by the revenue, the Supreme Court set aside the judgment and remanded these and the other petitions which were all heard together. Of the two contentions formulated above, the first, relating to the constitutionality of the Act in relation to entry 86, was subsequently overruled by the Supreme Court in Banarsi Dass v. Wealth-tax Officer [1965] 56 I.T.R. 224 (SC) and only the second remained open to the petitioners and was pressed before us, not to mention the point taken in O.P. No. 684 of 1959, against the merits or the propriety of the order of assessment. 2. As directed by the Supreme Court, an opportunity was given to the Petitioners and to the department to file fresh affidavits. Section 3 of the Wealth-tax Act, which is impugned as discriminatory, is in these terms : "3. Subject to the other provisions contained in this Act, there shall be charged for every financial year commencing on and from the first day of April, 1957, a tax (hereinafter referred to as wealth-tax) in respect of the net wealth on the corresponding valuation date ....
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....comprehensive to include all joint or undivided families composed of those who follow the Hindu religion, whatever be their personal law, whether Makkathayam or Marumakkathayam or Aliyasanthana or Mitakshara or Dayabhaga law, but not Moplah Marumakkathayam tarwads or other non-Hindu undivided families. Though learned counsel for the petitioners at one stage contended that the term "individual" can refer only to a single individual human, being, and supported the contention by relying on the references in section 4 to "wife", "daughter" and "child" of an "individual", I am satisfied that the meaning of the term is not to be so restricted; the contention is also against the weight of authority. I also feel that the term "individual" in singular includes "individuals" in plural. The argument for the revenue that the Moplah Marumakkathayam tarwads and other non-Hindu undivided families are comprehended by the term "individual" has its roots really in the interpretation of that term in entry 86, by the Division Bench of this court and by some of the other High Courts and accepted as correct by the Supreme Court, as including all undivided families, which, for the purpose of interpretati....
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...., in a taxing Act, especially in the context of the antithesis mentioned. In the case of Banarsi Dass [1965] 56 I.T.R. 224, 231. A.I.R. 1965 S.C. 1387 cited above the Supreme Court stated the converse position at page 1391 to be that: "The tax legislation may, for convenience or other valid reasons, have made a distinction between individuals and Hindu undivided families; but it would not be legitimate to suggest that the word 'individual' occurring in an organic document like the Constitution must necessarily receive they same construction." 7. The use of the term "Hindu undivided family" in antithesis with "individual" was not, as the argument of counsel for the revenue implied, to distinguish and separate undivided families on the basis of religion into those of Hindus and of non-Hindus, but was to distinguish an agglomeration or a group of individuals formed or associated by agreement or contract or otherwise between the parties, from a group in which the members take their interest by birth and are welded together into a unit by the personal law which binds them. The former pertains to the region of status. This distinction receives considerable support from the ....
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....ndu undivided family of which he is a member. " 10. There is no corresponding exclusion of the interest of the assessee in the property of any other undivided family, though it is true that it has been recently held by a Full Bench of this court that the undivided share of a member of a Hindu Marumakkathayam tarwad is not liable to be attached or sold ; there is no ruling of this court on the point regarding the undivided share of a Moplah Marumakkathayam tarwad. The Madras High Court has been of the view that the undivided share of a member of a tarwad is liable to be attached and sold. Section 15A as introduced by the Wealth-tax (Amendment) Act, 1964, provides for the signing and verification of a return to be made under sections 14 and 15 of the Act. While clause (b) of section 15A has provided that in the case of a Hindu undivided family the karta or, in certain circumstances, any other adult member of the family shall sign and verify the return of net wealth. Clause (a) has provided that, in the case of an individual, he himself and "where for any other reason it is impossible for the individual to sign the return", any person competent to act on his behalf shall sign and v....
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....ded family" for the purpose of the proviso. I do not think, with respect, these can be regarded as authorities for holding that the term "individual", as used in section 3 of the Act, can include a group of individuals as stated by the court knit together by "an involuntary association brought about by their mere birth". In Vysyaraju Badri Narayanamurthy v. Commissioner of Wealth-tax [1965] 56 I.T.R. 298 the Orissa High Court took note of the fact that: "the peculiar problem arising out of the existence of undivided families amongst non-Hindus does not arise in this (that) State and in most other States in India. Moplahs following the Marumakka-thayam law are found only in Kerala. Similarly, Christians following the Hindu law of coparcenary even after conversion must be very few indeed", and formulated its conclusion that: "it is open to the legislature to classify a Hindu undivided family as a distinct unit apart from an individual, for the purpose of levying a separate rate of tax. This is a well-known feature found in the Indian Income-tax Act." As a result of the above discussion, I come to the conclusion that non-Hindu undivided families are not covered by the term "individual....
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.... to extend the rules of Muhammadan law of intestate succession and the Mappilla Wills Act, 1928, was to extend the rules of Muhammadan law of testamentary dispositions to Moplahsy governed by the Marumakkathayam or the Aliyasanthana law of inheritance but these had nothing to do with a Moplah tarwad or its properties. 15. In my view, a comparative study of the Madras Marumakkathayam Act, 1932, and the Moplah Marumakkathayam Act, 1938, reveals a striking similarity between the tarwads dealt with by them. The basic concepts like karnavan, anandiravan, tarwad, and tavazhi are practically the same. 16. The Marumakkathayam system is defined in both, as the system in which descent is traced in the female line. In both, the karnavan is under a duty to keep accounts and to allow inspection of the same by the major members of the tarwad. The power of the karnavan to alienate tar wad properties and to contract debts is the same. These provisions are alike applicable to a tavazhi and its properties. Every junior member of a tarwad has a right to be maintained by the tarwad. There are provisions in the two Acts for the registration of tarwads as impartible and a procedure is prescribed f....
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....eaking with respect notwithstanding the several differences which the Madras High Court has enumerated in the case cited, between a joint family governed by the Hindu law and a Marumakkathayam tarwad, Hindu or non-Hindu, I feel that it is still open to question whether they really count at all in the context of article 14 of the Constitution. However, as between a Moplah tarwad and a Hindu Marumakkathayam tarwad, whatever be the difference in matters of personal law regarding marriage, divorce, and succession to personal and separate property, in point of structure and constitution, of the unity of ownership and possession, of the rights and powers of the karnavan, of management and alienation of common properties, of the rights of junior members to protect and conserve their interest in such properties and in fact of the very concept and institution of tarwad itself, there is no scope for a classification into Hindu and non-Hindu undivided families because such differences have no relation to the object of the Act, which is to tax net wealth above certain limits in the hands of the community, whether individuals or joint families or companies. Before parting with the Madras case, ....
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....d to wealth-tax as such and not the very large number of undivided families which are being taxed only as individuals." This is not clear, for non-Hindu families are not assessed as families but only as individuals. In the affidavit dated the 6th November, 1964, the number of Hindu undivided families assessed to wealth-tax in the year 1961-62 was stated to be 34 and in the year 1962-63 to be 23. At the hearing, learned counsel for the respondent stated that the list of 22 karnavans of Moplah tarwads furnished in paragraph 3(vi) of the affidavit of the petitioner may be taken as correct. Thus, the number of Moplah tarwads in North Malabar who are now assessed to wealth-tax as individuals may be taken to be 22. A comparative estimate is not possible, without even a rough idea as to the number of wealthy Hindu undivided families of all categories in the whole of India. This was necessary as a part of the petitioner's plea of discrimination. The respondent has stated in the counter that, considering the population of India, the number of non-Hindu undivided families is insignificant and negligible. It is also averred by the petitioner in O.P. No. 684 that "the native or Indian Chri....
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....f wealth-tax. A taxation statute is not immune from attack under article 14. There is no reason to think, nor was it contended, that the exclusion, if any, of non-Hindu undivided families was deliberate or intentional. But then, to attract article 14, as held in State of Madhya Pradesh v. Bhopal Sugar Industries Ltd. [1964] 52 I.T.R. 443 (SC), discrimination need not be deliberate or intentional; that would of course be a clear case, as in Morey v. Doud [1957] L. Ed. 2d. 1485, where by statute an exemption from the necessity to take a licence was granted to one company which was not allowed to others, and the law was struck down. Deliberate discrimination against any class, big or small, might spell in the region of legislative mala fides and ought not to be countenanced. In the present case, the question is somewhat different. To take an extreme case by way of illustration, a law which imposed a burden or cast a duty on say 10,000 individuals or classes left out a single individual or class similarly situated through ignorance or inadvertance, could the law be struck down on that ground ? "The omission to tax any particular individual, who may be liable, does not render the who....
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....ect from a carefully devised scheme to produce such inequality ; or a scheme, if not so devised, necessarily producing that result. Absolute equality may not be attainable, but gross and designed departures from it will necessarily bring the legislation authorising it within the prohibition." 24. To conform to the decision of the Supreme Court, it has only to be made clear that discrimination to attract article 14 need not be deliberate ; but even if inadvertent, it must be material. I, therefore, come to the conclusion that the discrimination, if any, arising from the exclusion of Moplah tarwads is not so material as would attract article 14. The plea under article 14 has to be overruled. 25. On the merits of O.P. No. 684 of 1959, the first point taken was that section 20(1) and (2) were not complied with in passing the order of assessment. For the assessment year 1957-58, wealth-tax was paid as ordered, as on the relevant valuation date, the 16th September, 1956. For the assessment year 1958-59, which commenced on the 1st April, 1958, the valuation date being the 16th September, 1957, the petitioner took the plea that his Mom or joint family had ceased to exist as such, by ....
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.... Officer on which he acted, that the deed of partition could not have been executed on the 30th March, 1958, when the stamp papers were purchased only on the 25th July, 1958, itself was not put to the petitioner. The petitioner in effect complained that the rules of natural justice were not observed by the officer. 27. I consider that, on both these grounds, the assessment order in O.P. No. 684 of 1959 could not be supported ; it is quashed accordingly. O.P. No. 684 of 1959 is allowed. O.P. No. 674 of 1958 also is allowed, on the ground that the Moplah Marumakkdthayam tarwad of the petitioner is outside the purview of section 3 oi the Act. The demand notice is quashed. The parties in both these petitions shall bear their costs. Gopalan Nambiyar, J. - O.P. No. 674 of 1958. The O.P. challenges the validity of the Wealth-tax Act (Act 27 of 1957) (hereinafter referred to the Act). The petitioner is the karnavan of a Moplah Marumakkathayam tarwad. Section 3 of the Act, as it originally stood, was as follows: "3. Subject to the other provisions contained in this Act, there shall be charged for every financial year commencing on and from the first day of April, 1957, a tax (herei....
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....lakhs of net wealth ... 2.0% (v) on the balance of net wealth ... 2.5%" (The rest of the Schedule is not material and is not reproduced). 33. The constitutionality of the Act was impugned on two main grounds namely : "(1) want of legislative competence to tax families under entry 86 of List I of the 7th Schedule of the Constitution ; and / (2) violation of article 14 of the Constitution. " 34. In the decision in Mammad Keyi v. Wealth-tax Officer, Calicut [1962] 44 I.T.R. 277 legislative competence was upheld by a Division Bench of this court. It was ruled -that the term "individual" in section 3 of the Wealth-tax Act, whatever be its connotation in entry 86 of List I of the 7th Schedule of the Constitution cannot comprehend a Hindu undivided family, nor a Moplah Marumak-kathayam tarwad. It was also ruled that: "Hindu undivided families of wealth have been singled out by the Act from other similar joint families in the country and that the State has thereby denied equal protection of the law to the former. The provisions in the Act relating to Hindu undivided families are severable and to that extent the Act has to be struck down. " 35. Civil A....
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....l for the petitioners in regard to the scope and content of the expression "Hindu undivided family" in section 3 of the Act. 38. Counsel however joined issue on the ambit of the expression "individual" occurring in section 3 of the Act. According to Shri Nambiar, the said expression would not comprehend non-Hindu joint families. It was claimed that there were at least three such joint families in this country, namely: (1) Moplah Marumakkathayam tarwads. (2) Certain Christian families governed by Hindu law, and (3) Families of a section of Muhammedans-the Khojas-following the Hindu law. 39. It was the contention of Shri Nambiar that the exclusion of these families would spell discrimination against Hindu undivided families. The definite stand taken up by counsel for the revenue in the course of the arguments before us was that the term "individual" is wide enough to include all non-Hindu families, including Moplah Marumakkathayam tarwads, and that these have not been left out. (This stand is somewhat different from what is stated in paragraph 3 of the affidavit of the respondent dated August 26, 1964). There was the alternative argument, which stated in the language o....
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....on with "Hindu undivided family" would not comprehend a non-Hindu family or a Moplah Marumakkathayam tarwad. The argument is sought to be supported by reference to sections 5(ii), 15A(b), and section 20 of the Act and the Schedule thereto. I am not prepared to say that there is no force in this contention ; but at the same time, the antithesis may well be between "Hindu undivided family" which was a concept well known to the law and an "individual" which might well comprise groups of individuals and joint families other than "Hindu undivided family". In Commissioner of Income-tax v. Sodra Devi [1957] 32 I.T.R. 615, 620 ; [1958] S.C.R. 1, while construing section 16(3) of the Indian Income-tax Act, 1922, the Supreme Court observed : "Whereas the word 'individual' is narrower in its connotation being one of the units for the purposes of taxation than the word assessee, the word individual has not been defined in the Act and there is authority for the proposition that the word 'individual' does not mean only a human being but is wide enough to include a group of persons forming a unit. It has been held that the word 'individual' includes a corporation create....
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....o consider, whether a Moplah Marumakkathayam tarwad and a Hindu undivided family governed by the Hindu law are similarly placed. No such family of the latter type is before us, either in this O.P. or the cases heard along with it and I refrain from expressing any opinion on the question. For the same reason, I express no opinion as to the similarity or otherwise between a, Christian or Muhammedan family governed by the Hindu law and a Hindu undivided family. A pronouncement on these questions is unnecessary as, if there is discrimination against the Moplah Marumakkathayam tarward and in favour of the Hindu Marumakkathayam tarwad, (one of the components of a Hindu undivided family) any question of discrimination on a larger basis does not call for consideration. 48. As far as the Hindu Marumakkathayam tarwads are concerned, the relevant statute dealing with them in the Malabar area of this State, with which we are concerned in this O.P., is the Madras Marumakkathayam Act (XXII of 1933). The Marumakkathayam Moplah in the Malabar area are governed by the provisions of the Moplah Marumakkathayam Act (Madras Act VII of 1939). 49. The prevalence of marumakkathayam among the Moplahs....
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.... a brief resume of the position of the Marumakkathayam Moplahs of the Malabar area of this State. Little has been said to justify the classification of the Moplah tarwads as a category separate from the Hindu Marumakkathayam tarwads. As two entities similarly situated are subjected to the different incidence of taxation, I am of the view, that there is discrimination against the Moplali Marumakkathayam tarwads, by reason of the favourable treatment accorded to the Hindu Marumakkathayam tarwads. 53. But if does not seem to me to follow on this account that the entire Act is liable to be struck down, as contended by Shri M. K. Nambiar. It appears to me that the vice of unconstitutionality and discrimination can be met by excising the content of the term "individual" in section 3 of the Act, so as to exclude the Moplah tarwad from its ambit. There seems to me sufficient warrant for such a course. 54. In R.M.D. Chamarbaugwalla v. Union of India A.I.R. 1957 S.C. 628 the Supreme Court was called upon to consider the constitutional validity of the Prize Competitions Act (XLII of 1955). Section 2(d) of the said Act defined "prize competition" in language wide enough to cover not only....
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....nt history of the legislation, its purpose and the mischief it seeks to suppress (vide (1) Bengal Immunity Co. Ltd. v. State of Bihar [1955] 6 S.T.C. 446 ; [1955] 2 S.C.R. 603 and (2) R. M. D. Chamarbaugwalla v. Union of India A.I.R. 1957 S.C. 628. Viewed in that light, we have no hesitation in so construing the provisions of the sections impugned in these cases as to limit their application to acts involving intention or tendency to create disorder, or disturbance of law and order, or incitement to violence." 56. The principle of the above decisions was applied by this court in Mohamad Khan v. State of Kerala [1963] K.L.J. 718. The question in the said case was whether the term "prejudicial report" in section 31 of the Travancore-Cochin Public Safety Measures Act V of 1950, would comprehend reports, both true as well as false, so as to render a person liable to be proceeded against for dissemination of even a true report. It was held on a proper construction of the section in its context and setting that only false reports were comprehended; but assuming that the dissemination of even true reports were within its purview, this court was of the opinion that the entire section ca....
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....on was claimed to be of legal practitioners, employed on payment, on behalf of, or against, the municipality. The object or purpose to be achieved by the provision was the purity of public life, by avoiding situations where there was conflict between interest and duty. It was urged that besides the category provided for in the section, such conflict was likely to arise in many other similar situations, and that in so far as they were not covered by the section, the provision was discriminatory. The argument was met by the Supreme Court as follows : "The simple answer to this contention is that legislation enacted for the achievement of a particular object or purpose need not be all embracing. It is for the legislature to determine what categories it would embrace within the scope of legislation and merely because certain categories which would stand on the same footing as those which are covered by the legislation are left out would not render legislation which has been enacted in any manner discriminatory and violative of the fundamental rigid guaranteed by article 14 of the Constitution." 61. As I read the above passage, the Supreme Court did not sustain the omission to pro....
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....bacco are pointed out and it is stated that these differences would justify Virginia tobacco being treated as a class in itself. In paragraph 5 of the same report1, the argument of counsel is noticed that the differences between the two types of tobacco are not germane to the levy of sales tax, and so there is no valid classification. Adverting to the said argument, the Supreme Court observed: "We are unable to agree with this contention. If a State can validly pick and choose one commodity for taxation and that is not open to attack under article 14, the same result must follow when the State picks out one category of goods and subjects it to taxation. " The above passage seems to me to indicate that the range of choice conceded to the State in matters of taxation is quite independent of its power of reasonable classification. I am quite alive to the statement in paragraph 8 of the A.I.R. report A.I.R. 1962 SC. 1733, where the differences between the two Varieties of tobacco were held sufficient to found a reasonable classification, In Southern Roadways ( Private) Ltd. v. Union of India [1963] 44 I.T.R. 708 (S.C.), the Supreme Court had to consider the validity of the provis....
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....ide latitude in classification for taxation.' (Willis on Constitutional Law, page 587). This approach has been approved by this court in the case of East India Tobacco Co. v. State of Andhra Pradesh [1962] 13 S.T.C. 529; A.I.R. 1962 S.C. 1733". 67. I may next refer to the decision of a Division Bench of this court in Essa Ismail alias Babu v. State of Kerala [1965] K.L.J. 915. 918. The validity of the Kerala Plantations (Additional Tax) Act, 1960, was attacked, inter alia, on the ground that while seven enumerated plantations have been taxed, some other plantations similarly placed had been omitted from the purview of the Act, and the omission to do so violated article 14. The argument was repelled as follows : "It may also be true that there are other items, which could have been brought within the purview of the Act. But that does not mean that there has been a violation of article 14 of the Constitution." 68. The learned Chief Justice who delivered the judgment of the Bench then proceeded to refer to the passage from Willis, noticed above, and to the decision in Sakhawant Ali v. State of Orissa A.I.R. 1955 S.C. 166. I see nothing in the judgment to show that this sp....
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....uthiah Chettiar v. Wealth-tax Officer [1964] 53 I.T.R. 504 ; [1964] 2 M.L.J. 273 a Division Bench of the Madras High Court sustained the validity of the Act. The decision appears to take the view that a Moplah Marumakkathayam tarwad is included in the term "individual" (see page 286). The argument of discrimination based on differential treatment of the Moplah tarwad was repelled on the ground that the Hindu undivided family and a Moplah tarwad are not similar objects entitled to equal treatment. The question pointedly argued before us, namely, the similarity between a Moplah tarwad and a Hindu marumakkathayam tarwad in particular (and not a Hindu joint family) does not appear to have received specific or pointed consideration in the Madras ruling. The Madras decision took the view that the karnavan of a Moplah tarwad is an individual and can be assessed as such for the properties of the tarwad in his hands. In the view I take, it is unnecessary to deal with this aspect of the matter. 73. It seems to me that if, in passing the Wealth-tax Act, the All India Legislature selected the main types of joint families in this country, and individuals for the purpose of taxation the same ....
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....ntly, and this again would amount to discrimination. These arguments have been considered and dealt with by me in my judgment in O.P. No. 674 of 1958. The challenge to the constitutionality of the Act must therefore fail. 77. Regarding the attack on the merits of the assessment, I agree with the order of my learned brother, Velu Pillai J., that this O.P. should be allowed for reasons stated in his judgment. I would order accordingly. O.P. No. 674 of 1958 Krishnamoorthy Iyer, J. - The two questions raised in the above original petition are : (1) Whether the net wealth of the Moplah Marumakkathayam tarwad registered as impartible within the meaning of section 20(1) of the Madras Act XVII of 1939 is assessable to tax under section 3 of the Wealth-tax Act, 1957 (hereinafter referred to as the "Act"), and (2) if such net wealth is assessable under section 3, whether it is violative of article 14 of the Constitution ? 79. I agree with the conclusion reached by Mr. Justice Nambiar that the expression "individual" in section 3 of the Act will include a group of individuals who are members of a Moplah Marumakkathayam tarwad. The term "individual" has not been defined in the Act.....
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.... distinct from the members of the family or tarwad. This position is supported by the observations of the Supreme Court in C.A. Cheriyan v. A. Menon AIR 1963 SC 128. Such undivided family or tarwad does not have the attributes of a legal person distinct from the members of the undivided family or tarwad. The absence of machinery provisions similar to those applicable to "Hindu undivided family", for assessing a group of individuals who form a non-Hindu undivided family or a non-Hindu Marumakkathayam tarwad cannot in my view affect the question. If the charging provision in the Act is clear, the fact that there are not enough machinery provisions to cover all contingencies cannot in any way control the charging section. I am not also impressed with the argument based on the juxtaposition of the expression "Hindu undivided family" in section 3 of the Act. As I have already indicated, when, for purposes of assessment under the Act, "Hindu undivided family" is treated as a separate assessable entity, the specific mention of the same in the section cannot restrict the meaning of the expression "individual" therein. I, therefore, feel that the net wealth of the group of individuals who a....
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....ny taxing statute is found to contravene article 14, it would be open to courts to strike it down as denying to the citizens the equality before the law guaranteed by article 14." 84. The contention based on article 14 of the Constitution is on account of the difference in the rate of tax prescribed for "individual" and "Hindu undivided family" in Part I of the Schedule to section 3 of the Act. The material part of the Schedule referred to in section 3 of the Act as it stood at the relevant date is extracted below : "(a) In the case of every individual: (i) on the first rupees two lakhs of net wealth ... Nil (ii) on the next rupees ten lakhs of net wealth ... ½% (iii) on the next rupees ten lakhs of net wealth ... 1% (iv) on the balance of net wealth ... 1½% (b) In the case of every Hindu undivided family: (i) on the first rupees four lakhs of net wealth ... Nil (ii) on the next rupees nine lakhs of net wealth ... ½% (iii) on the next rupees ten lakhs of net wealth ... 1% (iv) on the balance of net wealth ... 1½% .......................
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....ndivided family" cannot amount to hostile discrimination against the group of individuals who constitute a Moplah Marumakkathayam tarwad. Once a "Hindu undivided family" is assessed as a unit of assessment, it must continue to be assessed even after disruption until an order is passed by the Wealth-tax Officer under subsection (1) of section 20 of the Act recognising the partition. Sub-section (2) of section 20 of the Act enables the officer even to declare that such family shall be deemed to continue to be a "Hindu undivided family" liable to be assessed as such. In this connection, the observations, though with reference to section 171 of the Income-tax Act, 1961, at pages 53 and 54, in the Law and Practice of Income-tax by Kanga and Palkhivala are pertinent: "Once a family is assessed as undivided, it would continue, even after partition, to be assessed as an undivided family till a finding of partition is given under section 171 by the Income-tax Officer. The rigour of the law taxing an undivided family just as an individual is mitigated by special provisions granting a higher ceiling of deduction on account of insurance premia and by a larger initial margin of income exempt....