9911796707
TMI Blog1996 (10) TMI 56X X X X Extracts X X X X X X X X Extracts X X X X ..... ion presented under section 256(1) of the Act and registered as R.A. No. 45/Ind/87 decided on December 2, 1988. In this case, the following questions are proposed : " (i) Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in holding that the family arrangement in the instant case amounted to a partial partition covered by section 171(9) of the Income-tax Act ? (ii) Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in holding that even the genuine family settlements which had not the effect of avoiding tax were also covered by the provisions of section 171(9) of the Income-tax Act ? (iii) Whether, on the facts and in the circumstances of the case, the Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... effect of the judgment of the Madras High Court [1988] 170 ITR 238 ? (iii) If according to the Tribunal, the case was not covered by section 171(2) and (3) then whether the Tribunal could uphold the order de-recognising the partial partition (family settlement) under section 171(9) of the Income-tax Act ? (iv) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in applying the ratio of the judgment of the Supreme Court in the case of Kalloomal Tapeswari Prasad (HUF) v. CIT [1982] 133 ITR 690, especially in the context of the fact that the judgment did not deal with the provisions of section 171(9) of the Income-tax Act as the same were not at statute book ? (v) Whether the order of the Tribunal is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of the Tribunal went against the assessee and the application submitted under section 256(1) of the Act was dismissed as regards the order passed in I.T.A. No. 743/ Ind/85 (Misc. Civil Case No. 120 of 1989) and the applications submitted under section 256(1) of the Act, as regards the order passed in I.T.A. Nos. 59 and 60/Ind/85, were allowed only in part to the extent of one question as quoted above (Misc. Civil Case No. 578 of 1992). Aggrieved, the applicant has filed these two applications for different assessment years, i.e., 1980-81 (Misc. Civil Case No. 120 of 1989) and 1981-82 and 1982-83 (Misc. Civil Case No. 578 of 1992). We have heard Shri P. M. Choudhary, learned counsel for the applicant and Shri Patharekar, Income-tax Offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sub-section (2) and no finding shall be recorded under sub-section (3) that such partial partition had taken place and any finding recorded under sub-section (3) to that effect whether before or after the 18th day of June, 1980, being the date of introduction of the Finance (No. 2) Bill, 1980, shall be null and void ; (b) such family shall continue to be liable to be Assessed under this Act as if no such partial partition had taken place ; (c) each member or group of members of such family immediately before such partial partition and the family shall be jointly and severally liable for any tax, penalty, interest, fine or other sum payable under this Act by the family in respect of any period, whether before or after such partial parti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alling upon the Tribunal to state the cases and refer one question each in both these cases as particularised above. We have taken this view because in our view it is necessary to consider and answer whether the family arrangement amounts to a partial partition in terms of the Act or not. In the result, we allow these miscellaneous civil cases in part and call upon the Tribunal to state the cases and refer the aforesaid question in each case as expeditiously as possible for our consideration and opinion. We, however, make no orders as to costs. Transmit a copy of this order to the Tribunal for compliance. Retain this order in the record of Miscellaneous Civil No. 120 of 1989 and place its copy in the record of Miscellaneous Civil ..... X X X X Extracts X X X X X X X X Extracts X X X X
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