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TMI Blog1985 (8) TMI 55X X X X Extracts X X X X X X X X Extracts X X X X ..... e applicant's wife. In 1958, the said Jivanji died and the bigger Hindu undivided family was reduced to a single coparcenary with two female members. In Samvat year 2025 corresponding to the assessment year 1970-71, a partial partition was claimed to have taken place between Rameshchandra and his widowed mother, Jashoda, in respect of the business and capital of the bigger Hindu undivided family of Jivanji Govindji Bhavsar. The said partial partition was recognised by the Income-tax Officer under section 171 of the Income-tax Act by his order of November 15, 1971. The applicant, Rameshchandra, and his mother, Jashoda, formed a partnership by bringing in capital received by him on the said partial partition which had taken place at the end o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... divided family was valid. The Income-tax Officer held that there were no two Hindu undivided families in existence and the only Hindu undivided family which was in existence was the smaller Hindu undivided family of Rameshchandra particularly because the bigger Hindu undivided family had merged into the smaller Hindu undivided family in view of the fact that there was only one coparcener and that the widowed mother had obtained her share in the coparcenary property under section 6 of the Hindu Succession Act and so, no longer further entitled to share on partition. He accordingly clubbed the income of both the Hindu undivided families in the assessment of the applicant-assessee. In appeal to the Appellate Assistant Commissioner, the Incom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal under section 256(1) of the Income-tax Act on the question as to whether the Tribunal was right in allowing the appeal by holding that till the order of the Income-tax Officer recognising the partial partition was set aside in appropriate proceedings, it operated for all intents and purposes and, therefore, the income of the bigger Hindu undivided family could not have been clubbed with the smaller Hindu undivided family, in that the applicant-assessee sought reference of two questions on the points of validity of partial partition and in any case it was a family arrangement which was negatived by the Tribunal. The Tribunal rejected the application of the Commissioner under section 256(1) with the result there was no occasion for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case, the Tribunal under section 254 may decide the appeal partly against one party and partly against the other. In such a case, each of the aggrieved parties has to seek reference and one aggrieved party cannot seek reference in respect of the decision of the Tribunal by which he is aggrieved in an application where the other party which is also aggrieved by the decision seeks reference. In other words, a party aggrieved by the decision of the Tribunal under section 254 cannot seek reference in his capacity of non-applicant. However, there may be cases where the Tribunal might have wholly allowed the appeal on one or the other contention, though negativing some of the contentions urged in support of the appeal. In such cases, the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the obvious reason that the assessee was not an aggrieved party who could have sought reference under section 256(1) and, therefore, when his cross-questions could not be referred to us since there was no occasion for the Tribunal to refer because the Tribunal has dismissed the application of the Commissioner for reference under section 256(1), the assessee could not have come under section 256(2) at that stage. In the alternative, Mr. Shah submitted that even if the court is of the opinion that the Tribunal should refer the two cross-questions as required by the assessee, no directions in that behalf should be given since that would be tantamount to exercising the power under section 256(2) without proper application made in that behalf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which should deter us from issuing necessary directions calling upon the Tribunal to set out the two cross-questions as required by the assessee. The observation which has been emphasised by us in the above paragraph does not warrant that it is only at the stage when an application for reference under section 256(1) is made that this power of referring the cross-questions can be exercised by the Tribunal. In our opinion, reading the observation in that limited way would defeat the very purpose which has been set out in the last lines of the paragraph set out above. The ultimate purpose is to enable a non-applicant to seek questions of law arising out of the order of the Tribunal under section 256. No doubt the part which has been emphasise ..... X X X X Extracts X X X X X X X X Extracts X X X X
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