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TMI Blog1983 (8) TMI 152X X X X Extracts X X X X X X X X Extracts X X X X ..... ef, are that the assesses are HUFs. The previous years relevant for the asst. yrs. 1979-80 and 1980-81 ended on 13th January, 1979 and 26th April, 1980 respectively. The assesses filed the returns of income and claimed partial partition, in the family. It was also claimed that in consequence of partial partition referred to above the coparceners obtained their shares as under: N. Devindran Rs. 40,000 D. Ponnappan Rs. 40,000 D. Sankar Rs. 40,000 The ITO did not accept the partial partition claimed by the assessee in view of the provisions of s. 171(9) of the IT Act 1961. Hence he rejected it and thereby assessed the income of assessee for the assessment year under consideration in the sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court and Allahabad High Court are of no help. Moreover, this controversy has been settled by the Hon ble supreme Court in the case of Kalloomal Tapeswari Prasad (HUF) vs. CIT (1982) 26 CTR (SC) 415 : (1982) 133 ITR 690 (SC) which is in favour of the revenue on the issue. Accordingly, non-acceptance of partial partition of the authorities below is to be confirmed and the assessment of 1979-80 and 1980-81 is consequential to this issue. Therefore, no interference required in the assessment orders for both the years under consideration. He relies on the decision of the High Courts and the orders of the authorities below. 7. We have heard the rival contentions and have gone through the records before us. We are of the opinion that the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o him or it at such partial partition; and the provisions of this Act shall apply accordingly". 8. Shri Rajaraman, the ld. Counsel for the assessee, in view of this section admitted at the Bar that it is applicable to both the years under consideration and the ITO is justified in not accepting the partial partition claimed by the assessee. However, he contends that when there is no amendment of s. 64 of the Act, then in the case of the assessee, the amendment of s. 171 by insertion of sub-s. (9) becomes redundant in view of the fact that amended s. 171 (9) is corresponding to the provisions of s. 25 of the IT Act, 1922 where their lordships of Andhra Pradesh High Court in the case of CIT vs. Dara Seshavataram (1980) 16 CTR (AP) 371 : (1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he issue of partition or recognised the partition as in such situation the HUF continues as such for the purpose of assessment. However, their Lordships of the Supreme Court in the case of (1982) 26 CTR (SC) 415 : (1982) 133 ITR 690 (SC) prior to the insertion of s. 171 (9) have taken a view different to that of the aforesaid High Courts and set the controversy at rest holding that it was s.25 of the old Act which was not applicable to partial partition But s. 171 applies to all partial partition; but s. 171 applies to all partitions total and partial and unless a finding was recorded u/s 171, the income form the property has to be included in the total income of the family by virtue of sub-s. (1) of s. 171. Thus, even prior to insertion of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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