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TMI Blog1985 (5) TMI 90X X X X Extracts X X X X X X X X Extracts X X X X ..... perties held by it, only effected the partition of two properties but the same, according to the assessee's contention, was legal, despite section 171(9), as the three properties, which were not partitioned, were such which could not be partitioned either legally or physically. In order to appreciate the dispute, a small backdrop shall be of immense assistance. 3. The assessee-HUF C.S. Tiwana Sons was constituted of Justice C.S. Tiwana, his wife, Mrs. Manjit Kaur and his two sons, Mr. Jasjit Singh Tiwana and Major Harjit Singh Tiwana. Justice Tiwana is the 'karta' of the said HUF. The said HUF owned following five properties: (i) Residential house No. 1107, Sector 11-C, Chandigarh; (ii) One-eighth share in two plots of land situated near Sirhindi Gate, Patiala; (iii) Rights relating to possession over agricultural land situated at village Dayagarh, Tehsil Nabha, Distt. Patiala; (iv) Agricultural land measuring 10 bighas 12 biswas comprised of khasra Nos. 1121 to 1126, situated at Patiala; (v) Property No. 181-182, Sector 8, Madhya Marg, Chandigarh. The said HUF had effected partition only of the properties at Nos. (iv) and (v), i.e., agricultural land measuring 10 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... compilation at pages 17-18 and the same reads: "By the memo of partition executed on 28-3-1980, it cannot be said that there has been a partial partition of the joint Hindu family property. As mentioned in the deed, only three properties have been kept joint and the reason for the same is that they are virtually impartible properties at this stage. 2. Property No. 1 is residential house No. 1107, Sector 11-C, Chandigarh. By virtue of rule 14 of the Chandigarh (Sale of Sites and Buildings) Rules, 1960, framed under section 22 of the Capital of Punjab (Development and Regulation) Act, no fragmentation of any site or building can be permitted. Even if all the members of the HUF had agreed to partition the house by metes and bounds, it would have created a difficulty for them because in that manner, by violating the rules on the subject, they would have committed an offence under the Capital of Punjab (Development and Regulation) Act. 3. Property No. 2 is a plot of land at Patiala, in which the HUF has only one-eighth share. Half the share belongs to another person and in the remaining half, the HUF has a fourth share. The remaining share of the property belongs to three brother ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11-C and the other No. 181-182, Sector 8, was it so that restrictions as per Chandigarh (Sale of Sites and Buildings) Rules, 1960, were applicable to residential house No. 1107 and not to No. 181-182, Madhya Marg, the learned counsel for the assessee was fair enough to admit that there was no distinction so far applicability of said rules to the two properties was concerned. 9. After taking into consideration the rival submissions and going through the record carefully, we are unable to interfere in the finding of the AAC. After we have detailed out the factual background of the dispute in earlier part of this order, it will be very relevant to reproduce hereunder section 171(9) with Explanation given thereunder:--- "(9) Notwithstanding anything contained in the foregoing provisions of this section, where a partial partition has taken place after the 31st day of December, 1978, among the members of a Hindu undivided family hitherto assessed as undivided,--- (a) no claim that such partial partition has taken place shall be inquired into under sub-section (2) and no finding shall be recorded under sub-section (3) that such partial partition had taken place and any finding reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igarh (Sale of Sites and Buildings) Rules could not come in the way of the assessee. When we go through the types and texture of the property which was owned by the HUF, on the one hand, and mode of partition adopted by the assessee in respect of two properties, we are of the view that in that way all the properties which were held by the assessee-HUF were capable of being partitioned and since the assessee has not effected the complete partition, as all the properties were not partitioned, it is a case of partial partition which is incapable of being recognised by the revenue on the strength of section 171(9). 10. When we go carefully through the note placed by the karta of the assessee-HUF, extracted and placed above, which alone was summarised by the learned counsel for the assessee in course of his arguments, we don't find the same free from contradictions. For example, House No. 1107, Sector 11-C, according to the assessee, in respect of this property, restrictions and restraints as per rule 14 of the Chandigarh (Sale of Sites and Buildings) Rules, framed under section 22 of the Capital of Punjab (Development and Regulation) Act, came in the assessee's way because no fragmen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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