9911796707
TMI Blog1981 (1) TMI 125X X X X Extracts X X X X X X X X Extracts X X X X ..... ., 1973, entered into between Sri Govind Hari Singhania & Smt. Manorma Devi Singhania, (the said Sri Govind Hari Singhania) in his capacity as the Karta of the HUF decided to affect Partial Partition of 35,290 Ordinary shares of J.K. Synthetics Ltd., Kanpur belonging to the said HUF and that the said Karta did affect the said partial partition of the said 35,290 Ordinary shares of J.K. Synthetics Ltd. verbally on 15th Feb., 1973. Under the said partial partition, affected by the said Karta on 15th Feb., 1973, 17,645 Ordinary shares of J.K. Synthetics Ltd. were allotted to Smt. Manorma Devi Singhania as her share and 17,645 Ordinary shares of J.K. Synthetics Ltd. came over to the said Sri Govind Hari Singhania. 3. Since in the year under c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive her share. Since the HUF in such a case has only one coparcener who is the absolute owner of the property, no partition can be affected. Such a partition is void ab-initio. This is a mistake of law in which no two opinions are possible. This view is confirmed by Hon'ble Tribunal in the case of Shri Hari Shankar (HUF). The case reported in 34 ITR 42, 60 ITR 293, 101 ITR 776 support the case. The claim being void in the eyes of law there is an apparent mistake in the order under s. 171 (5) of the Act in accepting the claim of the partition." 4. Aggrieved by the said order of the ITO, the assessee brought the matter by way of appeal before AAC, who has upheld the said order of the ITO by observing as under: "It is a well settled law th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oth the ITO and the AAC of Income-tax have proceeded on wrong assumption of facts. It is not correct, as stated by the tax authorities that Smt. Manorma Devi had claimed the partition leading to the aforesaid partial partition. This assumption, according to the ld. counsel for the assessee, is wrong in view of the recital in the Memo recording the said partial partition dt. 22nd Feb., 1973. It has been specifically stated therein that Shri Govind Hari Singhania in his capacity as the Karta of the assessee HUF has decided to affect the partial partition of 35,290 shares of M/s J.K. Synthetics Ltd. and that the said Karta affected the said partial partition verbally on 15th Feb.,1973 by dividing the said shares equally between him and Smt. Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith a female member as its other member can affect the partial partition of one of the assets of the assessee HUF, two views are possible. For answering this question, we find that one view is the one taken by the tax authorities in the present case. Let us now examine the decision of the Punjab & Haryana High Court in the case of Narain Das Wadhwa. The facts of that case are that an HUF, consisting of K, his mother and two sisters, was a partner in a firm. The family had invested Rs.60,000 in the firm. On 15th May, 1969, K effected a partition dividing this amount among the members of the family. K's mother was allotted Rs. 25,000 and his sisters were allotted Rs. 5,000 each. K's mother and sisters withdrew these amounts from the firm and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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