9911796707
TMI Blog1981 (1) TMI 61X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee-Hindu undivided family on June 30, 1964 ?" The assessee is an HUF and the assessee's reference relates to the assessment year 1965-66. It was claimed that by a registered deed there was a partial partition of the assessee-HUF with effect from July 1, 1964. As a result, the assessee-HUF continued to be joint in respect of other assets and a smaller HUF was formed in respect of the assets mentioned in the deed. The assessee was an HUF consisting of Hoshiari Lal Kalyani, his wife, Sabitri Debi, three minor sons and five, unmarried daughters. The HUF had: (i) half share in the firm of Kaluram Chiranjilal, Dhupguri, (ii) three annas share in the firm, Bajrang Rice Mill, Maynaguri, (iii) three annas share in the firm, Hanuman Rice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wo different capacities and the partial partition was effected by a registered deed. He, therefore, directed the ITO to recognise the claim of partial partition and allowed the assessee's appeal. The department being aggrieved by the order of the AAC came up in appeal before the Appellate Tribunal. The Appellate Tribunal held that as laid down under Expln. (b) to s. 171 of the I.T. Act, 1961, partial partition could be partial as regards the persons constituting the HUF or the properties belonging to the HUF or as to both the properties and the persons, and, therefore, there was nothing wrong in the claim of partial partition made by the assessee. Thus, the order passed by the AAC was upheld. In the facts stated above it is to be seen w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f a HUF which consisted of himself and his two minor sons. During the assessment year 1940-41, the assessee applied under s. 25A for an order recording a partition arrangement effected by the assessee dividing himself and his sons, inter se. The property of the family consisted of business, houses and other immovable properties, jewels and shares. There were four businesses which were exclusively owned by the family and one in partnership with others. Under the partition deed two sole businesses were exclusively allotted to the father and the other businesses were divided equally between the sharers. The division of the businesses was made by appropriate entries in the accounts showing a division of capital and further contributions. In res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xplanation to s. 171 of the I.T. Act, 1961, which defines " partition " and " partial partition " contains nothing to permit an inference that these expressions are to be understood for the purpose of the Act in a manner different from that in which they are understood under the general Hindu law. Hence, according to their Lordships, a Hindu father could not have the right to bring about a partial partition of the family properties among his sons, inter se, as part of his patria potestas without the consent of his sons. Mr. R. C. Deb, the learned counsel for the assessee, in reply places Mulla's Principles of 'Hindu Law, 14th Edn., p. 610, which runs as follows : " The father of a joint family has the power to divide the family property ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made only by the consent of all, it may be pointed out that the question of consent would not arise in this case as the sons were minors and they could not give any valid consent. It is the father who acted on their behalf. Thus, we would hold that the father in this case had every right to bring about a partial partition of the family properties among his sons inter se as part of his patria potestas. In this view of the matter, the partial partition in this case as found valid by the Tribunal seems to be in consonance with s. 171 of the I.T. Act, 1961. Thus, we answer the question in the affirmative and in favour of the assessee. There will, however, be no order as to costs. SABYASACHI MUKHARJI J.-I agree. - - TaxTMI - TM ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
