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TMI Blog1981 (10) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... erties belonging to the family was assessed in the hands of the family. After the release deeds, Rengiah was assessed in the status of an " individual ". It appears that the two sons were also assessed in the status of individuals respectively. It is not, however, clear as to when they were married and got any child or children. Rengiah died intestate on July 9, 1949. Thereafter, the properties left by Rengiah devolved on the two sons, and they were, however, assessed to income-tax and wealth-tax in the status of an HUF describing Kamatchisundaram as the karta. Kamatchisundaram died in 1968. The wealth-tax assessments for the assessment year 1966-67 came to be made on K. Ramakrishnan, son of Kamatchisundaram, as legal representative to the estate of Kamatchisundaram and Subbarayalu in the status of a " Hindu Undivided Family ". The assessee contested the assessment in the status of an HUF. The AAC held that the separate property obtained by a Hindu father on partition of joint family property cannot acquire the character of coparcenary property on his death and that after his death, the divided sons would take the property only as tenants-in-common. In any event, even if the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no common assessment describing the status as " HUF " in so far as the properties left by Rengiah are concerned, jointly in the hands of the two sons. From the records, it is clear that there were assessments made on Kamatchisundaram as if he was the karta of the HUF consisting of himself and his brother Subbarayalu. They in fact became divided in the year 1932. The assessments were practically left uncontested as far as this aspect is concerned. However, we do not find any provision in the W.T. Act, which stands in the way of an assessee putting forward the correct position so as to describe the status properly and in accordance with the law in relation to any particular year. It is in this context, that we may refer to the corresponding legal position under the Indian I.T. Act, 1922, as that was the Act which was in force in the year 1949, when Rengiah died and compare it with the provision in the W.T. Act. Before the death of Rengiah, it is clear that there was no assessment of an HUF. An HUF could have come into existence only by reunion of the two brothers. There is no evidence of any such reunion. Even assuming that there was an undivided family because the two brothers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovision would come into operation only if and when the partition had taken place among the members of an HUF. The postulate is the existence of the family which has been disrupted. If there was no family, there is no question of any disruption or partition, and, therefore, s. 20 has no scope for application. This section does not empower assessment of an HUF which has ceased to be an HUF prior to the relevant valuation date according to Hindu law. It is necessary to bear in mind the difference in language between s. 25A of the Indian I.T. Act, 1922, and s. 20 of the W.T. Act. Section 25A of the Indian I.T. Act refers specifically to cases where there is an HUF " hitherto assessed as undivided ". Therefore, there must be an entity of an HUF which was assessed. When the ITO takes up the file for any later year, he may proceed on the basis of the continuance of the said family unless a claim is made by or on behalf of the said family that there has been a, partition by metes and bounds and unless he accepts such claim. It is unnecessary to express any opinion on the applicability of s. 25A of the Indian I.T. Act, 1922, to a case where there is or can be no HUF. However, as far ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orresponding income-tax assessment, the assessee put forward the position that there was an HUF till June 12, 1966. That date apparently refers to what happened in the suit. We do not have before us the relevant records of the said suit or the judgment pronounced by the court therein. The only information we have before as is that there was a decree for partition with effect from June, 12, 1966. Even the said decree is not before us. We do not know whether the suit was filed by the plaintiff as if there was an HUF or whether the suit was merely for partition between two co-owners. A suit for partition could lie in either of the circumstances and, therefore, it was not possible to draw the inference that the decree could have been passed only in the case of a division of an HUF. Further, we have already pointed out that the position in the I.T. Act would be different, having regard to the language of s. 25A and, therefore, we do not think it necessary to pursue the matter further. The learned counsel for the Revenue drew our attention to the decision of this court in CGT v. N. S. Getti Chettiar [1966] 60 ITR 454. In that case one Getti Chettiar, was the karta of an HUF consisting ..... X X X X Extracts X X X X X X X X Extracts X X X X
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