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TMI Blog1967 (9) TMI 24X X X X Extracts X X X X X X X X Extracts X X X X ..... panasam Hills and the rest in the Ambasamudram range. The entire lands have been used for raising cardamom plantations. The leases were for a fixed period of 25 years, but eligible to renewal. In about 1944, the lessee entered into a partnership with W.P.A.R. Chandrasekaran and his two brothers, Ramamurti and Rajagopalan, in respect of 310 acres. This partnership would appear to have been reduced in writing by a document dated May 10, 1954. For the year 1957-58, the lessee was assessed on the total income from the entire extent of 410 acres. For the following assessment year, the assessee claimed to have entered into a partition with effect from August 17, 1957, said to have been confirmed by a registered document dated August 1, 1958, by w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, contended for the assessee that the orders of the Commissioner contain certain observations which are prejudicial to the assessee and that, therefore, the ratio of the Full Bench decision is inapplicable. The main question the Commissioner had to decide was as to the factum of the partition asserted by the assessee. In the course of deciding that question, the Commissioner made certain stray remarks to the effect that leasehold interest in the entire extent of 410 acres, which was the subject-matter of the lease, belonged to him personally. It is apparently in view of this observation the Agricultural Income-tax Officer, in making the assessment subsequently, treated the assessee as an individual, instead of a joint family. We do not th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficer is that the members of the family are still living together in the same way as they had done before partition. The fallacy underlying this reason is that a partition is inconsistent with members of the family living together. No doubt, commensality may be a test of jointness, but a division is not negatived by the members of the family living together. In fact, we do not see how the members of the family can help living together, for the family consisted of the husband and wife and four sons, of whom three happened to be minors. So far as the major son is concerned, it is not possible from the circumstance of his living with the father to draw the inference that the division, if otherwise true, has not been given effect to. Yet anothe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceed on the basis that, once the partition was not accepted, the assessee must stand committed of it and accept the position. The true position is that the assessee is entitled to reiterate the question every year because the assessment is repeated every year and a year is the unit for that purpose. There is no question of res judicata in the matter. In our opinion, none of the reasons given by the Agricultural Income-tax Officer appear to be valid and the partition is not shown to be a make-believe transaction. The question is no doubt one of fact, but a finding in that regard should be arrived at by making a correct approach to and applying the proper principles of law. If there is a misdirection on the part of the assessing officer in la ..... X X X X Extracts X X X X X X X X Extracts X X X X
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