9911796707
TMI Blog1991 (1) TMI 200X X X X Extracts X X X X X X X X Extracts X X X X ..... essee supporting the order of CIT(A). We dispose of the appeal as well as the Cross Objection by this order for the sake of convenience. 3. The brief facts giving rise to this appeal are that Shri Tilak Raj Batra was karta of a HUF with his wife Smt. Krishna Batra, two minor sons Master Rajan Batra and Raman Batra and two minor daughters Km. Renu Batra and Km. Ranjana Batra as members/coparceners. For the assessment year 1978-79 to 1982-83 assessee filed returns of income on21st January, 1983and in Part III of the returns claimed to have partitioned two trucks bearing registration Nos. HRE 3399 and CHW 3165 as under : Truck No. HRE 3399 Shri Tilak Raj Batra and Smt. Krishna Batra along with two minor daughters Km. Renu Batra and Km. Ran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ster Rajan Batra confirming the partial partition was filed before the Assessing Officer. The Assessing Officer declined to recognise the partition for the reasons mentioned in para 3 of his order which is reproduced hereunder for the sake of reference : " I have carefully considered all the facts mentioned in the affidavits. The assessee has no accounts. Further as per memorandum of partial partition the liabilities against both the trucks have also been allotted to the alleged groups A B. It is found that Bank accounts stood in the name of Shri Tilak Raj Batra and not to the alleged groups. The Bank account is still being operated by Shri Tilak Raj Batra and that the trucks also stood in the name of Shri Tilak Raj Batra in the office ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assessee has for the first time made a claim of partial partition after the amendment of the law, i.e., on21st February, 1983and thus a strong burden lies on the assessee to establish that partial partition in fact took place on1st April, 1977as claimed. The learned D.R. referred to the decision of the Hon'ble Supreme Court in the case of ITO v. Bachu Lal Kapoor [1966] 60 ITR 74 in support of his contention that the Assessing Officer has the jurisdiction to examine the genuineness of the claim despite the fact that the individual members have separately been assessed. According to the learned D.R. the claim of the partial partition is nothing, but a make believe as no evidence has been produced before the Assessing Officer or before any oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the order of the CIT(A) may be confirmed and the appeal of the revenue dismissed. 10. We have given our careful consideration to the rival contentions. Section 171 of the Income-tax Act, 1961 was amended w.e.f.1-4-1980by virtue of which partial partition effected after31st December, 1978are not to be recognised for the purposes of income-tax. Assessee claims to have effected the partial partition w.e.f.1-4-1977by a memorandum of oral partial partition purported to have been executed on2nd April, 1977. A photostat copy of this memorandum was filed before the revenue authorities, copy of which has been made available to us is the only evidence produced on which assessee has based his claim on partial partition. The original document has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cumstances which indicate to the contrary. 11. In this case the fact that the registration of the vehicles had not been transferred in the name of respective groups and that the bank loans have been continued in the name of bigger HUF are the circumstances, which in the absence of any other evidence tilt the balance against the assessee. We may point out that despite the partial partition assessee may establish the circumstances under which registration of the vehicles was not transferred to the respective groups after the partition. Assessee may also establish the circumstances justifying continuation of bank loan in the name of bigger HUF. But in the absence of any evidence to the contrary Assessing Officer would be justified in drawing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessments in the case of separate groups for the subsequent assessment years is not a bar for consideration of the genuineness of the claim of the partition. The Assessing Officer has jurisdiction to go into the genuineness of the partial partition even if individual members have been separately assessed. This view is supported by the decision of the Hon'ble Supreme Court in the case of Bachu Lal Kapoor. We would also like to refer to the decision of the Hon'ble Supreme Court in the case of Apoorva Shantilal Shah v. CIT [1983] 141 ITR 558 wherein their Lordships of Supreme Court have held that it is open to the Assessing Officer before recognising the partition to come to a conclusion on proper scrutiny whether partition is genuine or not. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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