9911796707
TMI Blog1982 (2) TMI 92X X X X Extracts X X X X X X X X Extracts X X X X ..... d deposits of the HUF amounting to Rs. 2,61,000 in the Allahabad Bank, Generalganj, Kanpur. Out of the total value of the 7 fixed deposit receipts amounting to Rs. 2,01,000, the value of one of the fixed deposits to the extent of Rs. 21,000 was set apart to provide for the marriage. and other expenses of the minor daughter, Km. Vinita Dixit. The rest of the deposit amounting to Rs. 1,80,000 were divided equally between the karta, his wife and his minor son. The HUF consisted of Shri Kailash Kumar Dixit, the karta, his wife, Smt. Asha Dixit, his minor son, Vinay Kumar Dixit and his minor daughter, Km. Vinita Dixit. A deed dated 30-6-1976 of partial partition was also executed which was submitted before the ITO. The ITO took the view that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the assessee was that the deeming effect of section 171 does not warrant the charge of tax on income from the property which has ceased to be owned by the HUF consequent upon its partition. However, at the time of hearing this issue was not pressed before us and, therefore, it no longer survives for our consideration. In the appeal arising out of the assessment order passed by the ITO, the assessee had taken Ground No. 2 of appeal to the effect that section 171 does not warrant the charge of tax on unreal income derived from property which, pursuant to the partial partition, ceased to be owned by the HUF. However, at the time of hearing this ground of appeal was also not pressed before us. Therefore, it no longer survives for our conside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri Sheo Prasad, the learned departmental representative, pointed out that no details of the partial partition were given by the assessee in its application dated 31-7-1978. He also submitted that the deed of partial partition was a nullity as none had signed it on behalf of the minor. He also emphasized that the necessity for the partial partition and existence of a benefit to the minor had to be established. In this connection, he referred to the decision of the Allahabad High Court in Pratap Chandra v. ITO [1975] 100 ITR 551 wherein it was held that the disruption of a HUF cannot be recognised in any proceedings under the Income-tax Act so long as an order to that effect had not been passed. He also referred to the decision of the Madh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 31-7-1978, is without force. The next objection raised on behalf of the revenue that none had signed on behalf of the minor in the deed of partial partition is also not tenable on facts. The concluding portion of the deed is in the following words: "In witness whereof and acceptance of various contents of this Deed (Party No. 1) for himself and on behalf of Party Nos. 3 4 in capacity of their Natural Guardian and Party No. 2 for herself affix their signatures on 30-6-1976 hereunder in presence of following witnesses:--- Party No. 1 is Shri K.K. Dixit, the karta, Party No. 2 is his wife, Smt. Asha Dixit, Party No. 3 is his minor sons and Party No. 4 is his minor daughter. Thus, it is clear that the karta signed the deed of partial par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons. In the present case, the consent of the only minor son being there, the exercise of the patria potestas on the part of the father was unexceptionable. In the case of Govind Narain the Hon'ble High Court had clearly held that even if a share is allotted to a person who is not entitled to it on partition of a HUF, it cannot be a ground for holding the partition to be illegal or void and that such a partition cannot be challenged by a stranger. The same view has been expressed in the case of Hoshiyari Lal Kalyani by the Calcutta High Court. The case of provision for the expenses of the marriage of the minor daughter would, therefore, stand on the same footing, if not on a better footing. The said provision was not invalid. This is particu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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