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TMI Blog2009 (8) TMI 42X X X X Extracts X X X X X X X X Extracts X X X X ..... JUDGMENT ADARSH KUMAR GOEL, J. (Oral) - The revenue has preferred this appeal under Section 260A of the Income-Tax Act, 1961 (for short, "the Act") against the order dated 12.10.2007 passed by the Income Tax Appellate Tribunal, Delhi Bench "A" New Delhi in ITA No. 2908/Del/2003 for assessment year 1999-2000, proposing to raise the following substantial questions of law: a. "Whether on the facts and in the circumstances of the case, the Hon'ble Tribunal has erred in law in holding that provisions of Section 171(9) are not attracted in this case despite the fact that assessments for Assessment Years 1994-95 to 1998-99 had already been completed on 28.9.2000 whereas assessment for the year under consideration was completed much later ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n which the assessment is made for the assessment years 1994-95 to 1998-99, but the date on which the partial partition had taken place. If before 18.6.1998, the date of partial partition, an assessment had been made on the assessee-HUF then of course it cannot be contended that the assessee is not a HUF which has not been hitherto assessed. But once the partial partition had been effected, and before that date no assessment had been made upon the assessee-HUF, then it must follow that the HUF falls under the category of a family not hitherto assessed and consequently it must be held that the section has no application. If the point of time at which it has to be determined whether the HUF has been hitherto assessed or not is to be taken wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its application to the present case. In the present case, as is clear from the order of assessment, the status of the assessee was HUF for the earlier years from assessment years 1994-95 to 1998-99. The assessment of the said years was completed on 28.9.2000. Though the said date was after partial partition, the same related to period prior to partial partition. Once assessee was assessed as HUF, the said status continued. In M/s Tarlochan Singh (supra) the assessee had not been assessed for any period prior to partial partition. 6. Learned counsel for the revenue refers to judgment of Allahabad High Court in Commissioner of Income Tax v. Gyan Chand and Sons [2008] 303 ITR 267 wherein the assessee had been assessed in the capacity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble to the assessment taking place prior to partition. He also submitted that even notice for assessment for assessment years 1994-95 to 1998-99 was issued for the first time after the date of partition i.e. in October 1998. 8. We find merit in the contention raised on behalf of revenue. We are in respectful agreement with the view taken by the Allahabad High Court in Gyan Chand case (supra). The object of inserting clause (9) in Section 171 by Finance Act in pursuance of Finance Bill No.2 of 1980 was to do away with the concept of partial partition after December 31, 1978. While considering the validity and background of this provision, the Hon'ble Supreme Court in Union of India and others v. M.V.Valliappan and others ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... king place after the cut-off date is not to be inquired into and if inquired the findings would be null and void. Such a family is to be assessed under the Act as if no partial partition has taken place." 9. Having regard to the above observation, it is clear that partial partition taking place after 1.1.1979, cannot be recognized in respect of an assessee already assessed in the status of HUF, for the period prior to partition. Mere fact that assessment actually takes place on a date after the partition will not affect this position. 10. In the present case, the assessee having already been assessed in HUF status for the period prior to partition, had to be assessed in that status ignoring partial partition. The judgment of this Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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