9911796707
TMI Blog1988 (10) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... aram Kalani, who was about 10 years old at the time of adoption. On attaining majority, Sitaram Kalani became the karta of the assessee-Hindu undivided family. Till the year 1935, Shri S. R. Kalani was living with his adoptive mother at Neemuch but thereafter, he shifted to Indore and started Hindu undivided family business under the name and style of S. R. Kalani and Co. The first wife of the assessee died in the year 1952 leaving behind two daughters and a son. Shri S. R. Kalani married again in the year 1953 and thereafter the Hindu undivided family consisted of Shri S. R. Kalani as karta, his second wife, Manoramabai, his children and Smt. Badamibai, as members. In the assessment proceedings for the assessment year 1962-63, the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tantiate the claim with regard to the family arrangement. The Incometax Officer, after consideration of the material on record, rejected the claim of the assessee that there was a family arrangement and the Hindu undivided family business was turned into a partnership business. The Income-tax Officer made the assessment of the assessee in the status of Hindu undivided family. On appeal, the order passed by the Income-tax Officer was affirmed. The Appellate Assistant Commissioner held that the alleged family arrangement and partnership were not genuine transactions entered into between Smt. Badamibai and Shri. S. R. Kalani and that the Income-tax Officer was justified in rejecting the claim of the assessee in that behalf The Tribunal also af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the business carried on in the name of S.R. Kalani & Co. continued to be the business of the Hindu undivided family and no genuine firm came into existence and whether there is no evidence on record to support the finding of the Tribunal that the partnership deed dated August 17, 1961, was sham and fictitious ? That is how the aforesaid questions of law have been referred to this court for its opinion. Shri Chaphekar, learned counsel for the assessee, contended that the findings of the Tribunal that no family arrangement and partnership, as claimed by the assessee, had come into existence, were based on suspicion and that in arriving at these findings, the Tribunal had taken into consideration irrelevant material and had omitted to consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rials on which it is based. Having examined the order of the Tribunal and those materials, we are unable to agree with learned counsel for the appellant that the order of the Tribunal is vitiated by any of the defects adverted to in Dhirajlal Girdharilal v. CIT [1954] 26 ITR 736 (SC) or Omar Salay Mohamed Sait v. CIT [1959] 37 ITR 151 (SC). We must make it clear that we do not think that those decisions require that the order of the Tribunal must be examined sentence by sentence, through a microscope as it were, so as to discover a minor lapse here or an incautious opinion there to be used as a peg on which to hang an issue of law. In view of the arguments advanced before us, it is perhaps necessary to add that in considering probabilities ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned out of the family funds. The Tribunal has, in this behalf, observed as follows : "Smt. Badamibai was about 65 years of age on August 17, 1961, and if the amount of future maintenance payable to her was commuted, that would have come to a much smaller amount than a sum of Rs. 1 lakh having regard to her life expectancy in the year 1961. Now, as regards the plea of the assessee as to the cause that forced the assessee to enter into the transaction in question, i.e., that there used to be disputes between Badamibai and Smt. Manoramabai, the wife of the assessee, from the assessee's own evidence, this plea gets falsified. Smt. Badamibai was 65 years of age in the year 1961 when the dispute is alleged to have come to its highest. Ordinarily ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s alleged to have come into existence, Smt. Badamibai was aged about 65 years and did not have any particular qualification to run business. The Tribunal further noted that it was proved from the material on record that Smt. Badamibai did not spend any part of the share income derived by her on any one except the family members of her adopted son. In view of all this material on record, the Tribunal came to the conclusion that the capital of Rs. 1 lakh was not in fact paid by Smt. Badamibai and the transaction of partnership alleged to have been entered into between S.R. Kalani and his adoptive mother was not genuine. It cannot be disputed that the Tribunal had the jurisdiction to enquire whether a genuine firm had been constituted notwith ..... X X X X Extracts X X X X X X X X Extracts X X X X
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