ORDER
T.V. Rajagopala Rao, Judicial Member
1. This is an appeal filed by the assessee directed against the order of the Appellate Assistant Commissioner, A-Range, Vijayawada, dated 8-3-1985 and it relates to assessment year 1975-76.
2. The assessee is a specified HUF. The karta Sri K. Kodandarama Reddy, his wife as well as his son Sri Pera Reddy constituted a bigger HUP. But the karta Sri K. Kodandarama Reddy and his son Sri Pera Reddy were divided long back. Thereafter, Sri Kodandarama Reddy and his wife constituted a smaller HUP. Income-tax assessments up to and inclusive of assessment year 1974-75 were completed in the status of HUP. For assessment year 1975-76, which is now before us, the previous year of which ended by 31-3-1975, Sri Kodandarama Reddy did not file any income-tax return. On 11-1-1979 a notice under Section 148 was issued to the assessee by the Income-tax Officer calling upon him to file income-tax return. There was no response from the assessee and ultimately the karta of the assessee-HUF viz., Kodandarama Reddy died on 25-9-1982 without filing return of income. He purported to have executed a registered will on 1-9-1982 at Madras, according to terms of which Sri B. Ramachandra Reddy, his son-in-law, was appointed Executor. Notices under Section 142(1) were issued on 4-11-1982 and 3-12 1982 calling upon the Executor to file a return. On 15-12-1982 the Executor filed a nil income-tax return. It was argued that the status of the deceased is individual and the assessment was already completed in the status of an individual on 9-2-1978 and hence the proceedings initiated under Section 148 may be dropped. It was further contended that though the assessee and his wife previously constituted a HUF they were living separately by virtue of an agreement. The Income-tax Officer felt that the mere fact that they were living separately does not sever the status of husband and wife and he relied on the decision of the Andhra Pradesh High Court in the case of M. Narasimha Reddy v. M. Boosamma AIR 1976 AP 77. The Income-tax Officer further found that there is no judicial separation between the assessee and his wife. It was either applied for or granted and the marriage subsists till it is annulled by a competent court on an application for divorce. Hence the assessee and his wife continue to be legally wedded couple. The Income-tax Officer completed the assessment considering the status of the assessee as specified HUF on a total taxable income of Rs. 57,424 by passing his assessment order dated 2-3-1983 under Section 143(3) read with Section 147(a) of the Act.
3. Aggrieved against the abovesaid assessment the Administrator of the Estate of Sri Kodandarama Reddy went in appeal before the Appellate Assistant Commissioner and it was contended that there was an agreement between Sri Kodandarama Reddy and his wife Smt. Kausalyamma on 15-11-1984 to live apart and Smt. Kausal-yamma surrendered her right of maintenance from the joint family property by taking pronotes worth Rs. 50,658. The agreement executed by Smt. Kausalyamma is said to be as under :
I, Kookati Kausalyamma, Gandhinagar, Nellore, do hereby declare that I have agreed to be legally separated from my husband Sri Kookati Kodandarama Reddy, sole surviving coparcener of HUF, Gandinagar, Nellore and also to surrender my right to maintenance from my husband’s family property in consideration of my having been paid a consolidated sum of Rs. 50,658 by way of transfer of pronote in my favour.
It was contended before the Appellate Assistant Commissioner that the reopening of the assessment is bad in law because the same income was assessed by the Income-tax Officer in the status of individual by his assessment orders dated 9-2-1978. It was stressed that what is chargeable to tax is the income and not the person. Since the same income was taxed earlier it cannot be said that the income had escaped assessment for the purposes of Section 147(a). It was next argued that the reasons for reopening should be disclosed to the assessee and the absence to do the same vitiated the whole proceedings. Thirdly, it is argued that no court order is necessary to annul a marriage and a marriage can be disrupted by agreement between the parties and lastly it was argued that there was no information in the possession of Income-tax Officer to come to a conclusion that income chargeable to tax has escaped assessment.
4. In M. Narasimha Reddy’s case (supra) the Andhra Pradesh High Court was considering a case where facts are as follows. In that a decree for judicial separation was passed at the instance of the husband against the wife on 28-7-1962. She was provided maintenance at the rate of Rs. 200 per month. In execution of the decree for maintenance she applied for arrest of the husband. Without anything more happening the husband died in the year 1967 and she filed a suit for partition in 1968. It was contended that it must be deemed that a dissolution of marriage had occurred under Section 13 of the Hindu Marriage Act. Rejecting this contention the then Acting Chief Justice A. Sambasiva Rao held that dissolution or divorce can be granted only under a decree of a court. Sub-section (1) of Section 13 of the Hindu Marriage Act provides only a ground for applying for dissolution of marriage. If the circumstances enumerated in that Sub-section existed, then either party to marriage can apply for dissolution. There was no such application in this case much less a decree. Therefore it cannot be said that there was a dissolution of marriage thereby the plaintiff-respondent losing the status as wife. It was again contended that even judicial separation had the effect of depriving the plantiff-respondent of the status of the wife. It was held to be an untenable argument. Their Lordships held that if such were the intention of the Legislature there could not have been separate provisions for judicial separation and divorce. Section 10 of the Hindu Marriage Act is as under :
Either party to marriage, whether simultaneously before or after the commencement of the Act, may present a petition praying for a decree for judicial separation on any of the grounds specified in Sub-section (1) of Section 13 and in the case of wife also on any of the grounds specified in Sub-section (2) thereof as grounds on which a petition for divorce might have been presented.
In view of the above categorical provisions of Section 10(1) we have to at once dismiss the argument that a judicial separation can be brought about between husband and wife by a mere agreement. We hold that no such judicial separation can be brought about by mere agreement and it can be obtained only through court and that too by passing of a decree in a matrimonial court, The case dealt with by the Andhra Pradesh High Court is an extreme case where decree for judicial separation was already passed and it was sought to be executed also. Under Section. 13(1)(a) of the Hindu Marriage Act, 1956 the husband can as well secure a decree of divorce as the period of one year after passing of decree for judicial separation had already elapsed. However, neither a petition for divorce nor a decree for divorce was passed. In such a case it was held that the wife did not lose her status as wife and she is quite competent to succeed to her husband’s property as his heir. When that was the case with a person against whom a decree for-judicial separation “was already obtained what about a person against whom no petition for judicial separation was even present-ted in the matrimonial court and no decree was obtained for judicial separation. Therefore after rejecting the contention that judicial separation can be brought about by mere agreement between husband and wife we hold that the wife does not cease to be wife of her husband simply because she happened to live apart from him in the later part of his life.
5. The second question that was considered was whether giving some consideration snaps the tie of sapindaship between husband and wife. This point was directly dealt with by a later AP High Court judgment in Prem Chand v. CIT [1984] 148 ITR 440. The question there was that the parties belong to Benaras School of Hindu Law. At the time of partition the wife was given a share. The point that came up for consideration was whether she loses her rights subsequent to her getting a share in the partition and whether she would no longer be the wife of her husband. In that connection the Andhra Pradesh High Court held notwithstanding the fact of partition the wife was very much in existence and she would continue to be the wife. Next they held that the existence of sapinda relationship is the test for deciding who is the member of a Hindu joint family. Quoting from the Supreme Court’s decision in Surjit Lal Chhabda v. CIT [1975] 101 ITR 776 it was held that the appellant’s wife became his sapinda on her marriage with him. The fact that in a partition if the wife was given a share the said fact did not have the effect of wiping out her sapinda relationship. She, therefore, continued to be a member of the family of her husband notwithstanding the fact that under Benaras School of Mitakshara Law she was given a share.
6. In the WT appeals in the assessee’s own case this Tribunal by its order dated 31-1-1984 in WTA Nos. 250 and 360 (Hyd.) 1983 held that in spite of such agreement viz., agreement dated 15-11-1984 referred to supra the assessee’s family was not disrupted and the HUP comprising of the karta and his wife continued to exist.
7. In answer to the challenge that the reopening under Section 147(a) is invalid in view of the fact that the same income was assessed in the hands of the individual on 9-2-1978 is without substance the Appellate Assistant Commissioner relied upon the Calcutta High Court decision in Rajinder Mohan Bhandarl v. ITO [1978] 111 ITR 407. In that case a house property was in fact shown as belonging to the HUF though according to the information of the Income-tax Officer it was acquired by the individual members. Therefore the Income-tax Officer issued notices to the individual members of the HUF even if such income was assessed in the hands of the HUF. So also it was contended that there was no material to hold that the income liable to tax has escaped assessment. The contention was rejected and held that the fact that the assessee had not filed his return in the correct status as an individual would amount to income chargeable to tax escaping assessment. The Appellate Assistant Commissoner also relied upon the decision of the Supreme Court in ITO v. Bachu Lal Kapoor [1966] 60 ITR 74 to show that the reopening is valid. We fully agree with the reasoning adopted by the Appellate Asstt. Commissioner while holding that reopening under Section 147(a) was validly done. We also hold the argument that it is the income which is assessable and not the person is an argument stated to be rejected. The status of the person whose income was assessed would also determine the quantum of tax leviable. Therefore, it would be idle to contend that the status of the assessee is not relevant. Further there are several decisions of the Supreme Court which stated that the reasoning for reopening of assessment need not be communicated to the assessee. It is enough if such reasoning is recorded. The sufficiency of reasoning recorded i3 also not justiciable. Therefore the argument that the proceedings under Section 147(a) are vitiated because reasons for reopening are not communicated to the assessee falls to the ground. It was not denied that Smt. Kausalyamma, the wife of the deceased had her own taxable income in assessment year 1974-75. Therefore there is no denying the fact that the assessee-HUF is a specified HUF having a member whose income is more than the maximum not liable to tax and hence the assessee-HUF is a specified HUF.
8. In the result, we hold that the order of the Appellate Assistant Commissioner is quite justified and legal and hence the appeal is dismissed.