9911796707
TMI Blog1999 (8) TMI 12X X X X Extracts X X X X X X X X Extracts X X X X ..... ied under section 223(2) of the Act that the amount mentioned above is to be recovered from the said Prakash Chand Lunia. The notice contained the specification of the property being house No. 10/265 situated at Niti Marg, Ajmer, belonging to the Hindu undivided family property and one shop situated in Naya Bazar. It is mentioned in annexure A that the notice is being issued under the said provisions of the Income-tax Act for the said Hindu undivided family so far as the share of Prakash Chand Lunia is concerned. On receipt of the notice, annexure A, the Tax Recovery Officer, Ajmer, issued an order for sale of the property, the aforesaid details of which have been mentioned in annexure B, i.e., a bungalow at Niti Marg, Ajmer, and a shop of Hindu undivided family property at Naya Bazar, Ajmer, presently let out to N. K. Jewellers, and three others. Annexure B was issued on February 14, 1995. The petitioner is also aggrieved against the issuance of notice annexure B. Annexure B stated that for the amount mentioned in certificate No. 99/120, the amount now to be recovered was Rs. 6,00,09,341 after adding the tax, etc. It was mentioned in annexure B that public auction would be held on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... du undivided family---as assessed above, that amount has since been paid but for the amount assessed against the petitioner, Lunia, in his individual capacity, the notice annexures A and B had been issued for sale of the property of the Hindu undivided family. It is submitted that a prohibitory order was passed in relation to the Hindu undivided family property wherein the petitioner was only a karta, i.e., Hindu undivided family property No. 10/265, Niti Marg, Ajmer, in regard to his share. It is the submission of the petitioner that so far as the shop situated in Naya Bazar is concerned, a total amount of Rs. 1,275 p.m. is being paid by the tenants and as far as the property at Niti Marg, Ajmer, is concerned, that is also rented out. It is submitted that the Hindu undivided family is still in existence and has not been partitioned as yet and unless and until a partition takes place, the share of its members or coparceners cannot be known or ascertained. The Hindu undivided family property of the coparcener even officially cannot be sold or attached for the reason that there is no specific share of any coparcener. The petitioner is challenging the impugned order only on the abov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otion of an undivided family governed by the Mitakshara law, no individual member of that family, whilst it remains undivided, can predicate, of the joint and undivided property, that he, that particular member, has a definite share, one-third or one-fourth. His interest is a fluctuating interest, capable of being enlarged by deaths, in the family, and liable to be diminished by births in the family. It is only on a partition that he becomes entitled to a definite share. The most appropriate term to describe the interest of a coparcener in the coparcenary property is 'undivided coparcenary interest'. The nature and extent of that interest is defined in article 235. The rights of each coparcener until a partition takes place consist in a common possession and common enjoyment of the coparcenary property. 235. Rights of coparceners.---(1) Community of interest and unity of possession.---No coparcener is entitled to any special interest in the coparcenary property, nor is he entitled to exclusive possession of any part of the property. As observed by their Lordships of the Privy Council, 'there is community of interest and unity of possession between all the members of the family.' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by birth an interest in the joint or coparcenary property can be members of the coparcenary or coparceners. A male member of a joint family and his sons, grandsons and great grandsons constitute a coparcenary. A coparcener acquires right in the coparcenary property by birth but his right can be definitely ascertained only when a partition takes place. When the family is joint, the extent of the share of a coparcener cannot be definitely predicated since it is always capable of fluctuating. It increases by the death of a coparcener and decreases on the birth of a coparcener." As regards how the Hindu undivided family property is to be partitioned, the Supreme Court in ITO v. Smt. N. K. Sarada Thampatty [1991] 187 ITR 696, had held that the definition of "partition" in the Exploitation to section 171 of the Income-tax Act, 1961, does not recognise the partition of a Hindu undivided family even if it is effected by a decree of court unless there is a physical division of the property of the family and if the property is not capable of being physically divided, then unless there is division of the property to the extent it is possible ; otherwise, the severance of status will not a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e has been actual physical division of the property ; in the absence of any such proof, the Hindu undivided family shall be deemed to continue for the purpose of assessment of tax. Any agreement between the members of the joint family effecting partition or decree of the court, for partition cannot terminate the status of a Hindu undivided family unless it is shown that the joint family property was physically divided in accordance with the agreement or decree of the court." The Karnataka High Court in S. N. Santhalingam v. ITO [1980] 121 ITR 868, had held that the recovery proceedings could not be enforced against a person who was not named in the certificate as the defaulter merely on the ground that he was a partner of the firm. The court held that the term "defaulter" means the assessee mentioned in the certificate. Section 220 provides that when any amount, otherwise than by way of advance tax, specified as payable in a notice of demand under section 156 is not paid within the time prescribed, the person to whom the notice of demand is issued shall be the assessee in default, and thus it is clear that the assessee who becomes a defaulter is the person to whom a notice of de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... andra, AIR 1989 Raj 110, a Bench of this court held that attachment of undivided interest of a coparcener in execution of a decree against him for his personal debts is permitted under the law. From the above discussion it is very clear that so far as the undivided Hindu undivided family property is concerned, there is no defined share of a coparcener until and unless the property is divided or partitioned. If a decree is obtained against an individual coparcener, his property is liable to be sold in execution proceedings but the purchaser can have his share only by way of effecting partition. In the present case notice under section 222 of the Income-tax Act is to be given to an assessee in default and the authorities can proceed to recover from such assessee the amount specified by one or more modes mentioned, i.e., attachment or sale of the assessee's movable or immovable properties and arrest or detention of the assessee, by appointment of a receiver for the management of the assessee's movable property. No doubt in the present case the assessee is Mr. Prakash Chand Lunia in his individual capacity. Notice given in the present case is not to any other coparcener or member o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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