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TMI Blog1936 (5) TMI 36X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment in dispute is the year 1931-1932. Lachhirams family was carrying on business as a joint Hindu family and in 1931 three members of that firm being the sons of Lachhiram, Baldeodas, Mulchand and Mahabir Prasad, executed what purported to be a deed of partnership. This was on 1st June of that year and in the month of August following they made an application to the Income Tax Officer under S. 26-A, Income Tax Act, to be registered as a firm. In the result that Income Tax Officer decided that the alleged partnership was fictitious, not being acted upon, and that the members of the family still remained a joint Hindu family. Now Mr. Jayaswal contends in substance that the apparent state of facts should be taken as real in the absence of any evidence to the contrary and he contends that the inquiries which were made by the Income Tax Officer and upon which he appears to have decided that the family was still joint were not evidence upon which he was entitled to come to the conclusion that this partnership deed was an unreal transaction. The Income Tax Officer relied upon inquiries made from outsiders; he also found that the parties were messing together, and also a matter wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , that is to say, the son of Mulchand, and there were at least four sons of Baldeodas. It will be seen that as Lachhiram and the sons of whom I have made mention were not partners under the partnership deed, in one form or another either the joint family or several joint families remained and the mere decision of the Income Tax Officer under S. 26-A that three persons had constituted themselves a partnership firm, would not settle the question of whether there was to be in future an assessment on the joint family or more than one joint family. It is important to notice this in connexion with a matter to which I am about to refer. Mr. Jayaswal contends that it was necessary for him to make an application under S. 25-A, Income Tax Act. That section provides : Where at the time of making an assessment it appears that there has been a separation between the members of the family who have been assessed as such, and that the joint family property has been partitioned among the various members or groups of members in definite proportions, he shall record (that is to say the Income Tax Officer shall record) an order to that effect. It was never the case of the assessee either before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quishment of the rights of the parties in them in favour of the father indicate, taken in conjunction with the evidence of Baldeo Das taken on oath before the Income Tax Officer, that there were properties other than those mentioned in the deed. But apart from that, the deed does not purport to be a partition deed; it may relinquish some properties in favour of the father, but, as I have already indicated, there are properties which are not the subject matter of this deed and in those circumstances in my judgment it is impossible to say that that evidence by itself was such that the Income Tax Officer was not entitled to come to any other conclusion than that the property had been divided as alleged. The other piece of evidence is the account in the bahi dated 28th June 1930 in which the accumulated profits are shown to be divided between the three members of the firm and the father Lachhiram. In this account Lachhiram gets a share of approximately ₹ 24,000 less than the others which it is stated is made up by movable property which had been released under the deed of relinquishment. It was some evidence possibly that the joint family property had been divided, although it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Brijlal v. Commissioner of Income Tax, in which a partnership deed alone had been adduced in evidence before the Income Tax Officer. Sir George Rankin pointed out that that was the only evidence before the Income Tax Officer upon which he was asked to act. It was for the applicant to establish the fact that the partnership existed and it was, to use the words of Sir George Rankin : Tolerably clear in the absence of some evidence to the contrary, that this piece of paper referring to the partnership deed which the parties had signed was expected to be marginal talisman which would protect them from the imposition of super tax and had no other reality at all. It is contended as I have already stated that there was evidence in this case. It is true that there was evidence, but the weight of that evidence was for the Income Tax Officer as also the conclusion at which he should arrive. It is impossible to hold that in this case the Income Tax Officer was not entitled to come to the conclusion which he did. That in my judgment is sufficient and the answer to the case submitted by the Commissioner of Income Tax, is that in the circumstances of this case the family is to be con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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