9911796707
TMI Blog1984 (1) TMI 114X X X X Extracts X X X X X X X X Extracts X X X X ..... n the status of HUF. In order to appreciate the grievance of the revenue, which is common for all the years, we notice the factual background of the case. 3. Prior to 31-3-1965, there was a joint Hindu family constituted of Shri Jethu Ram, Smt. Rajo Devi, wife of Shri Jethu Ram and Shri Parkash Chand, their son. As on 31-3-1965, there was a partial partition of this family on 31-3-1966 qua the business capital. At the time of this partition, Smt. Rajo Devi did not get any share. The son Parkash Chand got his share of Rs. 28,556.21 as per entries made in the books of Jethu Ram Tilak Ram, Kallanwali. Smt. Rajo Devi remained joint with Shri Jethu Ram. On the basis of this partition, a claim was made in the assessment year 1966-67 for recordi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the years 1978-79 to 1981-82 were made in the status of individual. After these assessments had been completed, the revenue audit party audited the records of these two assessees and observed that for the assessment year 1977-78, the status had been taken as that of the HUF as the partial partition with effect from 31-3-1976 between the husband and wife was not valid according to Hindu law for there was no other male member of the family to claim partition. The audit pointed out that Smt. Rajo Devi became partner in the firm of Khushi Ram Co. during the assessment year 1977-78 by contributing capital received by her on account of partial partition. The audit, therefore, suggested that the income accruing and arising to her as share f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions. 7. Opposing these submissions, the learned counsel for the assessee pin pointed the issue by posing a question that is, whether the ITO on the facts and in the circumstances of the case, could ignore the order under section 171 passed by him on 18-1-1979 in the case of the HUF of Shri Jethu Ram for the assessment year 1976-77 and reverse everything done by him for these years earlier. 8. It was submitted by the learned counsel for the assessee that the order made by the ITO on 18-1-1979 was a valid order in law because it was passed after a proper claim was made and necessary enquiries were conducted by the ITO for his judicial satisfaction about the claim of partition. He submitted that the ITO became wiser only because of the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could not be taken ignoring the order made under section 25A of the said Act. The proper course for the ITO to adopt in such a case is to move the Commissioner to take action under section 33B of the 1922 Act to set aside the order under section 25A of the said Act. The learned counsel for the assessee submitted that in the case before us, the facts were exactly the same. 9. To elaborate this argument, the learned counsel for the assessee contended that the orders passed by the ITO in the case of the assessee Shri Jethu Ram and his wife for all the assessment years under appeal originally were based upon the partition as recognised in the order under section 171 made on 18-1-1979. Apparently, the limitation for an action under section 26 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claim partition of the joint family property; yet when a partition takes place, she (wife) is entitled to a share. The partition which was recognised by the ITO by his order dated 18-1-1979 was not a partition which was claimed on behest of Smt. Rajo Devi but, apparently, which had been effected by volition of Shri Jethu Ram because after necessary enquiries the ITO was satisfied after obtaining an affidavit from Smt. Rajo Devi that the partition made on 31-3-1976 was in accordance with law. It was for this reason that he accepted the claim made in the application dated 28-7-1976 and made the order under section 171 on 18-1-1979. Therefore, all that was to be decided by the ITO was decided after full enquiry and after proper presentation o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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