9911796707
TMI Blog1985 (4) TMI 84X X X X Extracts X X X X X X X X Extracts X X X X ..... al Smt. Nisha Rani Agrawal Rs. 45,000 (2) Dr. R.K. Agrawal and Rajiv Agrawal Rs. 45,000 (3) Dr. R.K. Agrawal and Rohit Agrawal Rs. 45,000 A claim for partial partition was made before the ITO. The ITO passed the order under s. 171 of the IT Act, 1961 on 20th Feb., 1981 declining to accept the assessee's claim. He held as under: "(i) The partition has been effected by the Karta in his capacity as the patria potesta since both the other coparceners are minors. The Hon'ble High Court of M.P. in the case of Seth Gopal Das reported in 1978 CTR (MP) 246 : (1979) 116 ITR 577 (MP) has held that a Hindu father has no right to effect partial partition in his capacity as patria potesta and that powe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yr. 1978-79 to 1980-81 income arising on the partition assets. He estimated such income at Rs. 9,450 in the asst. yr. 1978-79 and at Rs. 16,200 in the asst. yr. 1979-80 and 1980-81 each. 3. The assessee appealed to the AAC. The AAC on the basis of certain orders of the Tribunal and the decision of Allahabad High Court in M/s Daya Shanker Vijay Kumar vs. CIT (1980) 124 ITR 691 (All), accepted the claim of partition with the following observations: "3. I have considered the decisions quoted by the ITO and other facts stated by him in his assessment order. Keeping in view the various decisions of Hon'ble Allahabad High Court and also keeping in view the order of the learned members of the Tribunal wherein the cases discussed by the ITO h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re, was that the AAC had rightly accepted the assessee's claim of partial partition in the family. On behalf of the Department, it was submitted that whatever might be the position in the case of the assessee at least the latter could not claim that the three separate entities who were the recipients of Rs. 45,000 each were also separate HUFs which was also one of the reasons given by the ITO for rejecting the assessee's claim. 6. I have considered the submissions placed before me. The Supreme Court in the case of Apoorva Shantilal Shah vs. CIT (1983) 33 CTR (SC) 153 : (1983) 11 ITR 558 (SC) has held as under: "If the father in exercise of his superior right or of his right as patria potestas is entitled to bring about a complete disr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ween himself and his minor sons, if the father in the interest of the 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 minor sons. Even if the test of consent is to apply, the father as the natural guardian of the minor sons will normally be in a position to give such consent and it cannot be said as a matter of universal application that in all such cases of partition 'partial or otherwise' there is bound to be a conflict of interest between the father and his sons. If the father does not act bona fide in the matter when he effects a partition of the joint family properties between himself and his minor sons, whether wholly or partia ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
