JUDGMENT
Thanikkachalam, J.
1. The assessee is the petitioner. In the asst. yr. 1980-81, the assessee filed a return under the Agrl. IT Act (hereinafter referred to as “the Act”). The assessee did not file a composition application. A notice under s. 16(2) of the Act was issued to the assessee. The assessee has submitted a return showing the agricultural income for the period of twelve months ended 31st March, 1980. He had shown an income of Rs. 19,221. A notice under s. 17(2) of the Act was issued to the assessee, and another notice was also issued. Before the AO it was submitted on behalf of the assessee that the lands belong to Thiruvalargal A. M. S. Hameed Ibrahim, A. M. S. Ahamed Ibrahim and A. M. S. Lebbai Sahib, and the assessment has to be finalised under the status of “tenants-in-common”. According to the assessee, after the demise of their father, there was no partition of properties among his brothers and they are under common management for the purpose of earning income. The AO states that the representative of the assessee also agreed to assign the status as AOP. From the asst. yrs. 1972-73 to 1978-79, the same status was maintained under composition and tax levied. Since the assessee failed to send either composition application or return during the asst. yr. 1979-80, the assessment was finalised under s. 17(4) of the Act. According to the AO, the request of the assessee to be assessed under the status of tenants-in-common cannot be complied with, since they have not produced sufficient records to prove their claim. A perusal of the records would go to show that some of the lands were allotted to the three brothers through a family partition deed in the year 1948 and the remaining lands were jointly purchased prior to the year 1969. In such circumstances, the AO treated the status of the assessee as that of AOP instead of tenants-in-common. On appeal, the AAC confirmed the order passed by the AO. Aggrieved, the assessee filed a second appeal before the Tribunal. The Tribunal also agreed with the view taken by the authorities below. Accordingly, the appeal filed by the assessee was dismissed. It is against that order the assessee is in revision before this Court.
2. According to learned counsel appearing for the assessee, some of the lands fell to the shares of the three brothers after the death of their father and some of the properties were purchased by them jointly, and they are enjoying these properties as tenants-in-common. If they are enjoying the properties as tenants-in-common, as per s. 3(3) of the Act, they should be assessed separately in their individual capacity as co-owners and they cannot be assessed in the status of AOP. According to learned counsel, whatever may be the status in the earlier years, since each assessment year is a separate entity, in this assessment year the request made by the assessee should be complied with. Therefore, it was submitted that the assessment should be made in their individual capacity.
3. On the other hand, the learned Addl. Government Pleader (Taxes), while supporting the order passed by the Tribunal, submitted that it is no doubt true that under the provisions of s. 3(3) of the Act, the tenants-in-common are entitled to be assessed in the status of tenants-in-common, since the co-owners should be assessed separately and individually with regard to their individual income. But, in the present case, in earlier years, the assessee was assessed under the status of AOP. In such circumstances, if the assessee said that they have changed their status from that of AOP to tenants-in-common, it is for them to establish with acceptable evidence. Since no evidence was forthcoming from the assessee in that direction, the Tribunal was correct in holding that the assessee should be assessed in the status of AOP.
4. In support of such contention, learned Addl. Government Pleader (Taxes) relied upon a decision of this Court rendered in K. Md. Iqbal vs. State of Tamilnadu (1992) 1 MTCR 608.
5. We have heard the rival submissions, the fact remains that the three brothers inherited certain properties after the demise of their father to the extent of 77.28 acres. This devolved upon them in accordance with Mohammedan law. They are having a definite share in the property inherited by them. They have also purchased jointly 28.97 acres of land. Up to the asst. yr. 1978-79, the assessee was assessed in the status of AOP. In the asst. yr. 1980-81, the assessee filed a return claiming that he should be assessed in the status of tenants-in-common. According to the assessee, since he is a co-owner, he should be assessed separately and not in the status of AOP as per the provisions of s. 3(3) of the Act. If the assessee came forward with this claim soon after the demise of their father or after the purchase of the property, then as per the provisions contained in s. 3(3) of the Act, they would be treated as tenants-in-common and the assessment would have been made on each of them as co-owners individually. But, unfortunately, in the present case, in the earlier years up to 1978-79, the assessee was assessed in the status of AOP. Now, the Department contended that inasmuch as in the earlier years they were assessed in the status of AOP, it must be for the assessee to show how they have changed the status from that of AOP to that of the tenants-in-common as co-owners. There is justification on the part of the Department in asking the assessee to produce evidence to show when they have changed the status from that of AOP to that of the tenants-in-common. It seems that before the AO, the assessees representative accepted that the assessment can be made on the status of AOP. But, according to learned counsel appearing for the assessee, the return was filed showing the expenditure incurred by one of the co-owners for agricultural purposes and the income derived from the land was divided among themselves. Therefore, the status of the assessee may be considered as tenants-in-common and assessment should be made as co-owners. The evidence on record would go to show that proper materials were not placed before the authorities below to come to the conclusion that the assessee has changed the status from AOP to that of “tenants-in-common”. This confusion arose because in the earlier years, the assessee accepted to be assessed in the status of AOP. No doubt, each assessment year is a separate entity and the assessee can claim to be assessed as tenants-in-common in this assessment year. But in the earlier years, since the assessee was assessed as AOP definitely the assessee must prove that in this assessment year the assessee has changed his status from AOP to that of the tenants-in-common. Under such circumstances, we consider that the proper course would be to set aside the assessment made by the authorities below and remit back the assessment for the purpose of reconsidering the status of the assessee. Accordingly, we do so. The AO is directed to ascertain the status of the assessee in the assessment year under consideration afresh. The assessee is also entitled to produce evidence in support of his claim with regard to the status in which the assessment should be made. In that view of the matter, this tax case (revision) is allowed and the assessment remitted back for fresh disposal in accordance with the directions given above. No costs.