9911796707
TMI Blog1967 (3) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... way of remand. - - - - - Dated:- 29-3-1967 - J. C. SHAH., S. M. SIKRI. and V. RAMASWAMI. JUDGMENT The judgment of the court was delivered by SHAH J.--- The assessee is a Hindu undivided family. Till June, 1947, the assessee was carrying on business in jewellery at Lahore. The assessee started a jewellery shop at Delhi in the name and style of " Roshan Di Hatti ". On March 31, 1948, a credit entry of Rs. 3,33,414 was made in the books of account of the assessee as capital of the business---Rs. 2,92,340 being the value of gold ornaments, gold bullion and precious stones, and Rs. 41,074 being cash. It appears that the assessee was never assessed to income-tax till 1956, either at Lahore or at Delhi. Pursuant to information r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estimated the assets brought by the assessee from Lahore at Rs. 1,00,000 and modified the order of assessment and directed assessment of Rs. 2,33,414 as income from undisclosed sources. The Income-tax Appellate Tribunal confirmed the order of the Appellate Assistant Commissioner without deciding whether there was disruption of the joint status of the assessee-family as claimed by the assessee. The Tribunal observed that there was no formal application for an order under section 25A during the previous year, but only a claim for partial partition was made long after the previous year and in the circumstances the question of partition under section 25A could not be agitated at all before the Tribunal. In the view of the Tribunal, when partiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Tribunal. In dealing with the question referred, the High Court observed that the allegation of partition could not be accepted, since the Hindu undivided family had in fact filed a return of its income in its own name even for the assessment year 1959-60, and that in the absence of an order under section 25A(1) of the Act, assessment on the Hindu undivided family was proper. In so holding, the High Court relied upon the judgment in Kalwa Devadattam v. Union of India. The High Court also rejected the notice of motion for an order calling for a statement of the case on the question set out earlier. In our judgment, the question raised by the assessee was clearly a question of law which the Tribunal was bound to submit to the High Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case of the assessee that there was disruption of the joint family status as claimed by the assessee. The Tribunal recorded no conclusion on that part of the case and disposed of the contention raised by the assessee observing that unless an application under section 25A of the Income-tax Act was made and granted, the question whether there was disruption of the family cannot in view of section 25A(3) be agitated. Counsel for the assessee contended that the provisions of sub-section (3) of section 25A apply only to those cases where a Hindu family had been " hitherto assessed as undivided ; if it had been so assessed, it would continue to be assessed in the status of a Hindu undivided family, unless an order under sub-section (1) of se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns (1) and (3) of section 25A, and did not lay down that a family not previously assessed to tax may be assessed after partition in the status of a Hindu undivided family, until an order under section 25A(1) is passed by the Income-tax Officer. We are of the opinion that the statement of the case by the Tribunal is incomplete in that the Tribunal has not set out its conclusion on a material issue of fact. We are also of the opinion that the question referred by the Tribunal should be refrained as follows : " Whether in the circumstances of the case, the assessment was validly made on the assessee in the status of a Hindu undivided family ? " The judgment of the High Court is set aside and the case is remanded to the High Court. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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