9911796707
TMI Blog1983 (10) TMI 67X X X X Extracts X X X X X X X X Extracts X X X X ..... us firms should not be assessed in the hands of the assessee. First we take up the appeal bearing IT Appeal No. 1768 (Ahd.) of 1982 regarding the validity of partition. Before the ITO the assessee claimed that a partial partition has taken place insofar as the right, title and interest of the family in Hasmukhlal Patel & Co. is concerned as at the beginning of the Samvat Year 2029, it is claimed that capital of Rs. 73,926 with the firm of Hasmukhlal Patel & Co. has been equally divided amongst the three members of the family by passing entries in books of the family. It is further claimed that the members of the family before the partition were as under : 1. Shri Hasmukhlal Chhotalal, the karta. 2. Smt. Lilawatiben Chhotalal, widowed moth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not be any valid partial partition. Being aggrieved, the assessee came in appeal before us. 2. The submission of the learned counsel for the assessee, Shri K. C. Patel, was that there was a single coparcener in the family. There is no dispute on this fact but since the husband or Smt. Mangalaben, one of the widows, had died prior to the commencement of the Hindu Succession Act, she acquired the right to claim partition under section 3(3). That remains even after commencement of the Hindu Succession Act and when she has a right to claim partition, the partition was valid. His alternative submission was that following the view then by the Punjab and Haryana High Court in the case of CIT v. Narain Dass Wadhwa [1980] 123 ITR 281, the partit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mangalaben, died on 17-3-1954, Smt. Mangalaben acquired the right of partition under the Hindu Women's Rights to Property Act. Thereafter, on the commencement of Hindu Succession Act she became the absolute owner of the property. Now the narrow question that remains with us is whether she lost the right of partition after commencement of the Hindu Succession Act and if so, can the sole coparcener claim the partition under section 171 ? In the case of Shantikumar Jagabhai the issue before their Lordships was that in case of a widowed mother and a minor son, can there be a partition. Their Lordships held that as there was only a sole coparcener, no valid partition has taken place. In that case the husband of the widow expired on 1-9-1961, i. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 897, provides that in case of repeal of any enactment then unless a different intention appears, the repeal shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under the enactment so repealed. Therefore, the right which the widow has acquired under the Hindu Women's Rights to Property Act is still available even after commencement of the Hindu Succession Act. Further, there is nothing provided under the Hindu Succession Act that the right which the widow acquired under sub-section (3) of section 3 is taken back under any section of the Hindu Succession Act. Therefore, when the widow acquired the right of partition under sub-section (3) of section 3, the right continues even after commencement of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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