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TMI Blog1967 (12) TMI 6X X X X Extracts X X X X X X X X Extracts X X X X ..... ership consisting of the father and the three sons, which was a partnership coming into existence from April 1, 1955. Subsequently, on June 9, 1955, Kishori Lal and his three sons executed a partnership deed, annexure "F", in which they said that they had partitioned the Hindu undivided family business so as to carry it in their individual family rights and liabilities as a separate partnership concern, that the entire capital investment in the business known as Kishori Lal Sunder Lal was divided among the parties on April 1, 1955, and that the Hindu undivided family as such then ceased to have interest in that business on and from that date. In the assessment years 1956-57 and 1957-58 the partnership firm, Kishori Lal Sunder Lal, it havin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the contrary, was left to be paid by the Hindu undivided family of Kishori Lal and his three sons. On appeal the Income-tax Appellate Tribunal in its order of October 28, 1964, reversed that order and came to the conclusion that the timber business owned by the Hindu undivided family of Kishori Lal and his sons came to an end on 31st March, 1955, and that business was taken over by the partnership of Kishori Lal and his three sons under the name and style of Kishori Lal Sunder Lal on and from April 1, 1955. The Tribunal, therefore, allowed the claim of the partnership firm under section 26A of the Act and came to the conclusion that no part of the income accruing from the business of the firm, Kishori Lal Sunder Lal, could form part of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t such liabilities by the partnership firm. So, considering the above material, it found as a fact that on and from April 1, 1955, the Hindu undivided family timber business was taken over by firm Kishori Lal Sunder Lal, a registered partnership, and on that finding it decided as explained above. On an application by the Commissioner of Income-tax, Punjab, Jammu and Kashmir and Himachal Pradesh, under sub-section (1) of section 66 of the Act, the Tribunal has made reference of these questions to this court : "(1) Whether, on the facts and in the circumstances of the case, notwithstanding the non-division of the liabilities of the business, Messrs. Kishori Lal Sunder Lal, between the partitioning members of the Hindu undivided family, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase, it had to apply legal principles in regard to partial partition to reach the conclusion whether the timber business continued to be the business of the Hindu undivided family of Kishori Lal or it became the business of the partnership firm. The subject of partial partition is dealt with in paragraph 328, at page 381, of Mulla's Hindu Law, 1966 edition, and for the present purpose the manner and method of such partial partition is the same as that of partition, which subject is dealt with in paragraphs 322 and 325 of the same book. It is stated in paragraph 322 that : "According to the true notion of an undivided Mitakshara family, no individual member of that family, whilst it remains undivided, can predicate of the joint property, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial partition or not. Intention is always a question of fact. So that when those principles of Hindu law in relation to partial partition are applied to the primary evidentiary facts found by the Tribunal, the conclusion reached in regard to the intention of the coparceners of Kishori Lal's Hindu undivided family still remains a conclusion of fact, being a conclusion on their intention in this respect. In Sir Sundar Singh Majithia v. Commissioner of Income-tax , their Lordships of the Privy Council, in regard to a somewhat similar partnership deed, held that : "To decide that an instrument is in this sense not genuine is to come to a finding of fact : whether there was evidence upon which it was open to the income-tax authority to come to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ided family business, but the omission to divide the liabilities is only one factor for consideration. It is not the sole deciding factor. The Tribunal has considered at least seven other factors on which it has based its finding of fact. It has also considered that eighth factor, but has come to the conclusion that non-division of liabilities did not affect the question of effective partial partition of the joint family business by Kishori Lal and his three sons. Merely because the Tribunal has, after due consideration, not found in favour of the Commissioner of Income-tax on this one consideration, when its finding of fact is based on a number of other relevant pieces of evidence and considerations, a question of law does not arise in rel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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