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TMI Blog1964 (9) TMI 88X X X X Extracts X X X X X X X X Extracts X X X X ..... siness was assessed in its hands. On February 12, 1949, the Hindu undivided family applied to the Income-tax Officer for an order under section 25A of the Income-tax Act, 1922, claiming that there was a complete partition of the family. An order under section 25A was made, recognizing the complete disruption of the family on and from November 19, 1949. After the partition of the family a partnership firm, Hirday Narain Jogendra Prakash, was constituted, Hirday Narain and Jogendra Prakash being the partners and the remaining minor sons of Hirday Narain being admitted to the benefits of the partnership. The partnership took over the business which had hitherto been carried on by the Hindu undivided family. The partnership firm was registere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 52, his share in the firm's income was included in the assessment of Hirday Narain under section 16(3)(a)(iv). In the respective assessments of Hirday Narain for the assessment years 1954-55 to 1956-57, the share of Satyendra Prakash alone in the firm's income was included, the inclusion being justified by reference to section 16(3)(a)(iv). Against the assessments for the assessment years 1953-54 to 1956-57 upon Hirday Narain in the status of an individual, he appealed to the Appellate Assistant Commissioner, contending that he constituted a Hindu undivided family with his son, Satyendra Prakash, and that, therefore, the provisions of section 16(3)(a)(ii) and of section 16(3)(a)(iv), which were applicable only to the assessment of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndivided family and not as an individual and that, therefore, section 16(3)(a) did not apply. During the hearing of the appeals, the departmental representative raised an additional ground that, even if the status of the assessee be treated as that of a Hindu undivided family, the share of Satyendra Prakash was assessable in the hands of the family consisting of Hirday Narain and Satyendra Prakash. Objection was taken by the assessee to the admission of this ground, on the plea that the Income-tax Officer and the Appellate Assistant Commissioner had no opportunity to consider this question, but the objection was overruled by the Tribunal which admitted the ground and on the merits held that the property belonged to the Hindu undivided famil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... benefits of partnership was the income of the Hindu undivided family headed by Hirday Narain?" The Tribunal has made the instant reference and invited our decision on the following question: "Whether, on the facts and circumstances of the case, the inclusion of the share income of Satyendra Prakash with that of Hirday Narain was justified in law?" It considered that it was not necessary to refer the four questions suggested by the assessee as the question framed by it fully covered the points in issue. Learned counsel for the assessee sought to make two points before us. He contended that it was open to Hirday Narain to make a gift of his share capital in the firm to his son, Satyendra Prakash, and the finding of the Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts through affection, support of the family, relief from distress and so forth. Mitakshara, Chap. 1, sec. 1, para. 27" He could also make a gift of ancestral immovable property within reasonable limits for pious purposes. If the gift be treated as an alienation made by Hirday Narain as a mere manager of the family, there could be little doubt that the gift having been made in favour of the only other coparcener, and, therefore, to his benefit, there could be no objection by the latter. It is difficult to contemplate that Satyendra Prakash would repudiate the transfer made in his favour. Even if the gift be treated as a transaction made without legal necessity, the transaction not being void but only voidable at the option of Satyendra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner finally contended that the provisions of section 16(3)(a)(iv) applied to the case, even though the Tribunal determined the status of the assessee as that of a Hindu undivided family. Upon a plain reading of section 16(3)(a)(iv), which applies only to the computation of the total income of an individual, this argument is untenable. We are, therefore, of the view that the gift by Hirday Narain in favour of Satyendra Prakash being a valid transaction, the share of Satyendra Prakash in the firm's income could not be included in the assessment of the Hindu undivided family, of which Hirday Narain was the karta. We, therefore, answer the question in the negative. We direct that a copy of this judgment under the seal of the court an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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