9911796707
TMI Blog1983 (5) TMI 38X X X X Extracts X X X X X X X X Extracts X X X X ..... Smt. Kamla Devi. Shri Ashok Kumar Barnwal was the Karta. Besides, there was his wife Smt. Shakuntala Barnwal and his three minor sons. 3. The aforesaid family claimed before the ITO in the course of the assessment proceedings for the asst. yr. 1978-79 that there had been a partial partition between Shri Ashok Kumar Barnwal and Smt. Kamla Devi by which the entire capital of the HUF relating to sarrafa and yarn businesses had been divided between them in equal shars. It was specifically stated that the liabilities and the assets relating to the above two businesses had been equally divided amongst the above two members. The sarrafa business was carried on at the Head office in the name and style of M/s Ram Deokinandan Prasad. The yarn busi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was no properly executed deed of partition, which could be admissible as evidence. 5. The assessee appealed to the AAC. The AAC following the decision of the Punjab and Haryana High Court in CIT vs. Narain Dass Wadhwa (1980) 14 CTR (P H) 99 : (1980) 123 ITR 281 (P H), accepted the claim of the assessee and held that there was a partial partition in the family and, in any case, such a partition could be made by way of family arrangement. It appears he did not attach much importance to the other grounds raised by the ITO. 6. The department is now in appeal before us. The ld. departmental representative relying on the order of the ITO, submitted that mere book entries could not be relied upon for claiming partition, that there was no pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... des, reference was also made to certain other decisions to which we will refer a little later in our this order. 8. We have carefully considered the submissions placed before us. We will first deal with the question whether Shri Ashok Kumar Barnwal was competent enough in the present case to carry out partial partition with reference to certain properties belonging to the family. We find that this issue is directly covered by the decision of the Punjab and Haryana High Court reported in (1980) 14 CTR (P H) 99 : (1980) 123 ITR 281 (P H). It was held in this case that the Karta of an HUF did not cease to be a coparcencer, and as a coparcener he had a right to claim partition. In this case, a HUF, consisting of K, his mother and two sisters ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. It was claimed by the assessee before the ITO that there was a partial partition in the family and that the same should be recognised. Relevant entries giving funds to various members were passed and brought to the notice of the ITO. The ITO declined to recognise the partial partition on the ground that the Karta of the HUF had no authority to unilaterally effect a partition of the family properties and that there was no question of a partition at all in the HUF which had only one male coparcener, the other members being females. This view was accepted by the AAC and the Tribunal. The matter was referred to High Court. It was held that the provisions of the IT Act could not confer any right on partition, which is not available to any per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lways expected to be exercised in the best interest of the members of the family and more particularly of his minor sons. It is also now recognised that partial partition of joint family properties is permissible. There is no reason why the father, who can bring about a complete partition of joint family properties between himself and his minor sons, will not be entitled to effect a partial partition of joint family properties between himself and minor sons, if the father in the interest of joint family and its members feels that a partial partition of the properties will be in the best interest of the joint family and its members including the minors sons. 10. The Hon'ble High Court in the case of Bhupatrai Hirachand vs. CIT (1977) 109 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. In our opinion, entries in the books of account are binding on the members of the family. In fact, there can be a partition even orally. The main question is whether it has been acted upon. As stated above, the formation of the partnership in the name of M/s Barnwal Yarn clearly goes to show that the partition had been acted upon by the parties. For same reasons, we do not agree that no valid partition deed had been executed. Except so stating, no defect has been pointed out in the deed dt. 1st May, 1977 to which reference has already been made by us above. We, therefore, hold as a fact that there was a partial partition of the assessee HUF on 1st May, 1977 between Shri Ashok Kumar Barnwal and his mother Smt. Kamla Devi with reference to ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
