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TMI Blog1990 (11) TMI 106X X X X Extracts X X X X X X X X Extracts X X X X ..... nder consideration from the assessment of the assessee Hindu-undivided family ?" The questions referred in all the references are identical. The assessee is also the same in all the references. It would, therefore, be sufficient if we refer to the facts in income-tax Reference No. 199 of 1979. The assessee is a Hindu undivided family, Onkar Saran and Brothers. For the assessment year 1970-71, the assessee claimed that there has been a partial partition amongst the members of the Hindu undivided family and requested the Income-tax Officer to recognise and record the same. The claim of partial partition was made with respect to the interest the Hindu undivided family held in certain immovable properties known as Kothiwal Nagar properties. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her the properties comprising Kothiwal estate were capable of partition by metes and bounds and whether such partition was essential for the purpose of section 171 were left open. In pursuance of the order of remand, the Income-tax Officer examined the question and, by his order dated March 25, 1974, rejected the petitioner's claim for partial partition again. He held that division by metes and bounds was essential and since the said properties had not been so divided, the plea of partial partition cannot be accepted in the light of the Explanation to section 171. On appeal, the Appellate Assistant Commissioner agreed with the assessee and held that there was valid partial partition which ought to be recognised and recorded under section 17 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the Explanation to section 171 is intended only to apply to those properties which can be conveniently divided and not to those which cannot be conveniently so divided. The Tribunal, accordingly, directed the Income-tax Officer to accept the claim of partial partition. Thereupon, the Revenue obtained the reference of the said two questions under section 256(2). According to section 171 of the Act, a partial partition taking place on or before December 31, 1978, can be recognised and recorded. Sub-section (2) provides that : " Where, at the time of making an assessment under section 143 or section 144, it is claimed by or on behalf of any member of a Hindu family assessed as undivided that a partition, whether total or partial, h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or a mere declaration shall not be deemed to be partition. A partial partition may be with respect to some of the persons constituting a Hindu undivided family or some of the properties owned by Hindu undivided family or both. Now, the entire argument of the Revenue is based upon the definition of the expression "partition". Sri Markandey Katju, learned standing counsel for the Revenue, contends that the estate is capable of physical division. The Tribunal has not found that it is incapable of physical division. A partition without physical division can be recognised only where the property is not capable of physical division. The Tribunal was, therefore, in error in recognising the partition without recording a finding that the partition w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... property held by the Hindu undivided family concerned and not beyond. Since, in this case, the assessee-Hindu undivided family owns only an undivided interest, the only division that was possible in the circumstances was by specifying and separating the shares of the members of the assessee-Hindu undivided family and the division of income accordingly. Since that has been done in this case, the partial partition ought to have been recognised. Sri Markandey Katju placed reliance upon the decisions of the Supreme Court reported in Kalloomal Tapeswari Prasad (HUF) v. CIT [1982] 133 ITR 690 ; AIR 1982 SC 760 and joint Family of Udayan Chinubhai v. CIT [1967] 63 ITR 416; AIR 1967 SC 762. On a perusal of the decision in Kalloomal Tapeswari Pras ..... X X X X Extracts X X X X X X X X Extracts X X X X
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