9911796707
TMI Blog1983 (10) TMI 98X X X X Extracts X X X X X X X X Extracts X X X X ..... swamy is also employed in a bank. He has, therefore, salary income apart from his share of income from the firm. Shri Subramaniam has no salary income. Shri Narayanaswamy and Shri Subramaniam were the members of a HUF. There was a partition in the family on 2-9-1974 by which Shri Narayanaswamy and Shri Subramaniam took their shares separately. They were not married at that time. They were thereafter assessed as individuals up to and inclusive of the assessment year 1978-79. But, during the previous year relevant to the assessment year 1979-80, both Shri Narayanaswamy and Shri Subramaniam got married. It is their case that by their marriage a joint Hindu family came into existence with regard to each of them. On this basis, Shri Narayanaswam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appeal from the assessment order on the question of partition of HUF was not competent, that the AAC erred in holding that the HUF is disrupted even though the ITO had not passed an order under section 171(3) and that the AAC erred in holding that there is a disruption of the HUF by the operation of the Kerala Act. It may be stated straightaway that the appeals by the department are misconceived. The appeals seem to have been filed under the wrong impression that the ITO had for the first time accepted a plea by the assessees that there had been a disruption of the joint family and had made an assessment on them individually while the previous assessment was on the HUF. This is a case where the assessees were being assessed previously as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee took a separate share. It is settled law that an assessee obtaining share in a partition in a HUF and remaining unmarried can only claim the status of individual for the purpose of income-tax assessment as there could be a joint Hindu family only if there was a plurality of persons vide C. Krishna Prasad v. CIT [1974] 97 ITR 493 (SC). It is also settled law that the share failing to an unmarried coparcener on a partition does not lose its character of joint family property and that a HUF will come into existence on the marriage of the coparcener and that the wife along with her husband can constitute a HUF vide Prem Kumar v. CIT [1980] 121 ITR 347 (All.) and in CIT v. Krishna Kumar [1983] 143 ITR 462 (MP) (FB). Therefore, in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arriage subsequent to the commencement of the Act. We are unable to accept this argument. The provisions of the Act should be construed as a whole. The preamble says that the enactment was made to abolish the joint family system amongst the Hindus in Kerala. It is not the purpose of the Act to save the system in any given case and what is contemplated is the total abolition of the system. By section 3, the right by birth on which the continuity of the family is based, is abolished. By section 4 the joint tenancy is replaced by tenancy-in-common and a notional partition amongst the members of the HUF is effected. It is true that the section is not in terms applicable in the case of the present assessee because there were no other members in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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