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TMI Blog1982 (7) TMI 95X X X X Extracts X X X X X X X X Extracts X X X X ..... d a sum of Rs. 39,414. This partial partition was accepted by the ITO vide his order dt. 15th November, 1971. The mother and the son contributed this sum to a partnership firm by the name of M/s Jivanji Govindji Bhavsar from the beginning of S. Y. 2026 relevant to the asst. yr. 1971-72. In this partnership, the son purported to represent his HUF consisting of himself, his wife and two minor sons. After the said partition, no return was filed of the HUF of Jivanji Govindji, since the only income was from property which was less than taxable limt. However, from S. Y. 2030 (asst. yr. 1975-76) Rameshchandra, the Karta of that old HUF started a grain business in the name of Jivanji Govindji Bhavsar, HUF. For the assessment year in question, i.e. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the assessee Shri Kaji has urged that the partial partition was recognised by ITO u/s. 171 which still was in effect. He has drawn our attention to the decision of the Supreme Court in the case of Joint Family of Udayan Chinubhai, etc. vs. CIT (1967) 63 ITR 416 (SC) where it was held that the earlier order regarding partition could not be ignored and it was not possible to assess the income as if the original HUF continued to exist. Shri Kaji further stated that the family arrangement dividing the assets amounts to a partial partition relying on the decision of the Punjab Haryana High Court in CIT vs. Narian Dass Wadhwa (1980) 14 CTR (P H) 99 : (1980) 123 ITR 281 (P H). 4. On behalf of the revenue Shri Kathuria has urged that on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rat High Court in the case of CIT vs. Dr. Babubhai Mansukhbhai (Decd.) (1977) 108 ITR 417 (Guj), where it was held that "in the case of Hindus governed by the Mitakshara law, where a son inherits the self-acquired property of his father, the son takes it as the joint family property of himself and his son and not as his separate property. The correct status for the assessment to income-tax of the son in respect of such property is as representing his HUF". 6. In the final reply the ld. departmental representative has argued that the decision of the Supreme Court in H.K. Magdum's case is not regarding the partition and that therefore it is not applicable to this case. 7. Now, at the time of Jivanji's death in 1958, according to the dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their shares at the time of the partition and argued that the partition was invalid. Now in Apoorva Shah's case the Court was examining the superior right of the father (patria potestas) to effect the partition between himself and his sons and it held that the partial partition could not be effected in the exercise of this right. That is not the position in this case. The father Rameshchandra is not becoming separate from his two sons purporting to exercise the superior right. Therefore, the said decision is not applicable in this case. However, the fact that the decision in Apoorva Shah's case cannot be used to prove the invalidity of this partition does not necessarily mean that the partition is otherwise valid. That question still remai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there was that it was family arrangement that is not the case of the assessee here. 9. In V.V.S. Natarajan vs. CIT 1978 CTR (Mad) 106: (1978) 111 ITR 539 (Mad), on which both the ITO and the AAC have relied, the family consisted of one Shri Pandurangan who was the Karta, his wife and two minor daughters. The court at p. 541 had observed that "there is no coparcener in this HUF apart from the Karta. Therefore, the basic requirement of there being any male member who could be coparcener is absent in the present case so that there could be no possibility of a partition." This case is more appropriately fitting here. The ld. Advocate for the assessee has cited the decision of the Gujarat High Court in Dr. Babubhai Mansukhbhai, but in tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t year, and to assess the income in the hands of the assessee as if the original HUF continued to exist." 11. The argument of the ld. Departmental representative based on this word "apparently" appears to us to be rather over stretched. It would not be proper to place too much emphasis on this one word and try to go against the entire tenure off the judgment. Nor would it be correct to draw a distinction in this case between what is valid and what is ab initio void. When it is said here that the partition was invalid, it means that it was ab initio void. Therefore, the decision in the aforesaid case of Udayan Chinubhai would be applicable in this case. In the aforesaid case of Udayan Chinubhai at (1967) 63 ITR 416 at p. 423 (SC) the Supr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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