9911796707
TMI Blog1937 (10) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... two sons, A. D. Mullick and K. D. Mullick. S. C. Mullick died in 1930. His A. D. Mullick died in 1933. K. D. Mullick who is alive has two sons and A. D. Mullick has left 7 sons. Up to 1934 the entire family was treated for income tax purpose as a joint Hindu family governed by the Dayabhag schools of law and assessed as such. On the 14th July, 1934, a deed purporting to be one of partnership was executed by K. D. Mullick his two sons, and the seven sons of A. D. Mullick. The deed recites that when S C Mullick was settled down was a minor at the time, they started business as partners and that subsequently the sons of the two brothers were admitted into partnership and constituted a firm. The deed goes on to recited that the firm was recon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r registration under Sec. 26-A was rejected. The reference before us was made by the Commissioner of Income tax at the instance of K. D. Mullick. The three questions which we are required to answer are as follows :- (1) Whether the assessee, being a family governed by the Dayabhag branch of Hindu law is a Hindu undivided family within the meaning of the Indian Income Tax Act, 1922; (2) It the answer to the first question is in the affirmative, whether there was evidence upon which the Additional Income tax Officer could hold that no partition had taken place among the members of the family; and (3) Whether in the circumstances of this case, the Income Tax Officer was justified in going behind the partnership deed, dated the 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is an authority for the proposition that it is not open to the members of a Dayabhag family to become divided members, except by dividing the family property by metes and bounds, and that even though the intention to separate had been unequivocally declared and even though everything else necessary to bring about the disruption of the family had been done, the family would nevertheless be regarded in law as a joint family, only because the family property was not divided by metes and bounds, but the members merely agreed to hold in defined shares, as separated members. I is not necessary for us to express a decisive opinion on this part of the case, as, in our opinion, an unambiguous declaration of intention to separate must, in any case, b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he additional circumstance that for assessment purposes right up to 1934 the income from the hardware business was treated without objection as the income of a joint Hindu family. The position as regards question No. 1, assuming it is not a pure one of fact but a mixed question of law and fact may be summed up as follows : The assessees being members of a Hindu family and descendants of the same common ancestor, should be presumed to be joint till the contrary is established. Apart from possible inferences from the recitals in the partnership deed dated 14th July 1931, which are not binding on the Income tax Department there is no evidence to rebut the aforesaid presumption. The deed of partnership, if it is assumed to have been executed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing before him and we are unable to say that he was not justified, having regard to the material before him in going behind the partnership deed. We do not think that the third question is very happily worded. As it stands, it gives an impression that if it is answered in the affirmative, the finding of the Income tax officer is affirmed by this court. So far as it is intended to obtain an expression of opinion by this court, on the question of fact involved in it, it should not have been the subject of a reference under Sec. 66. So far as it relates to the question of law viz. whether the partnership deed dated the 14th July, 1934, is binding on the Income tax department, we have already expressed our opinion. Subject to these observations ..... X X X X Extracts X X X X X X X X Extracts X X X X
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