9911796707
TMI Blog1985 (7) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... ble ? (2) Whether, on the facts and in the circumstances of the case, the Tribunal was correct in law in holding that no genuine firm came into existence arid, therefore, the assessee was not entitled to registration ?" The facts giving rise to this petition may be stated, in brief, thus : The asses see, Tulsidas Kundanmal, being a joint Hindu undivided family was assessed in the status of a Hindu undivided family. The assessment years in question are 1973-74, 1975-76 and 1976-77. One Shri Kundanmal was the karta of the said Hindu undivided family. Besides the said karta, the other members of the Hindu undivided family are karta's wife, one major son, Shri Arjundas, and five minor sons. The total strength of the Hindu undivided family thu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which came into existence in 1976-77. The registration of the said firm was refused by the Income-tax Officer on the ground that it was not a genuine firm which order was also upheld by the Tribunal. Hence this reference. Learned counsel for the assessee submitted that section 171 of the Incometax Act permitted partial partition up to December 31, 1978, as would be clear from sub-section (9) of section 171 of the Income-tax Act, 1961. He, therefore, submitted that under the Hindu law, there was no bar for Shri Kundanmal as karta of the Hindu undivided family to relinquish his share and that thereafter his major son, Arjundas, became the karta of the Hindu undivided family who also filed returns of the Hindu undivided family under his sign ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is superior right or of his right as patria potestas is entitled to bring about a complete disruption of the joint family and to effect a complete partition of joint family properties of a Hindu joint family consisting of himself and his minor sons even against the wishes of the minor sons. This right which a father enjoys is always expected to be exercised in the best interest of the members of the family and more particularly of his minor sons. It is also now recognised that partial partition of joint family properties is permissible. There is no reason why the father who can bring about a complete partition of the joint family properties between himself and his minor sons, will not be entitled to effect a partial partition of joint famil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , genuine or legal. He further submitted that the partial partition effected in 1971 has been acted upon and the eldest son, Arjundas, has been submitting returns of the Hindu undivided family, Tulsidas Kundanmal under his signature. Therefore, there is nothing to doubt that after the relinquishment of Kundanmal, the Hindu undivided family ceased to exist. He, therefore, submitted that the Tribunal has not properly considered the provisions of the Hindu law and consequently the first question referred to this court for its opinion should be answered in favour of the assessee and against the Department. So far as the second question is concerned, he submitted that Kundanmal entered into partnership with his son, Arjundas, in 1976-77 and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the investments of the Hindu undivided family funds in the business." He, therefore, urged that in the absence of any material to doubt the genuineness of the said partnership firm, the Tribunal was not justified in refusing to register the said firm under the Income-tax Act. As against this, learned counsel for the Revenue submitted that the decision of the question referred to entirely rests on questions of fact which have been considered by the Income-tax Officer as well as the Tribunal and consequently no interference therewith is called for and in support of his submission, he placed reliance on the decisions in E A. E. T Sundararaj v. CIT [1974] 95 ITR 454 (Mad) and Mukhi Mulchand Sitaldas v. CIT [1978] 115 ITR 227 (MP). But, in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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