Somnath Iyer, J.
1. This is a reference under section 66(1) of the Income-tax Act, 1922, and the question of law referred to us reads :
'Whether the assessees are entitled to an order under section 25A(1) of the Income-tax Act of 1922, in pursuance of their claim of partition of the basis of the release deed dated June 13, 1960 ?'
2. It is seen from the statement of the case that the two assessees who were members of a Hindu Joint family made a partition of certain properties under the partition deed executed on March 29, 1957. In proceedings where the Income-tax Officer proposed to make an assessment in regard to the assessment year 1953-54, an application was presented by the assessees under section 25A of the Indian Income-tax Act, 1922, which will be referred to as 'the Act', for an order that there was a partition between them under that partition deed. The Income-tax Officer declined to make that order and his finding that there was no partition was confirmed by the Appellate Assistant Commissioner of Income-tax and the Appellate Tribunal. Eventually in I. T. R. C. No. 16 of 1961 this court explained by it order made on April 18, 1962, that the assessees were not entitled to the order which they sought since the partition on which they depended was incomplete. But this court observed :
'Admittedly that partition is incomplete. Certain reliefs granted in favour of the assessee as the 'karta' of his branch of the family were not taken into consideration while partitioning the joint family properties. They also did not take into consideration certain liabilities imposed on the assessee and these liabilities were also not divided.'
3. That matter concluded in that way.
4. When the Income-tax Officer was making an assessment with respect to the assessment year 1956-57, there was again an application presented by the assessee for an order under section 25A. The assessment concerned the joint family composed of the father, Esthuri Aswathiah, and the son, Sriramiah. It was stated in the application presented by them on June 13, 1960, that there was a release deed executed by the son in favour of his father under which a vacant land and a sum of Rs. 3,000 was taken by the son who relinquished in favour of his father all his rights in all properties which formed the subject-matter of the litigation between Aswathiah and his brother, Ramakrishniah. Alluding to the decision of the High Court on the Previous occasion, the Tribunal observed thus in the statement of the case :
'The High Court rejected the claim on the ground that certain properties which were the subject-matter of litigation between Esthuri Aswathiah and his brother, Esthuri Ramakrishniah, had not been divided between Esthuri Aswathiah and his son, Sriramiah.'
5. It is obviously for this reason that by the release deed Sriramiah relinquished all the properties which were likely to fall to the share of the family consisting of himself and his father in the litigation which was continuing between Aswathiah and his brother, Ramakrishniah.
6. The supposition on which their application was not under section 25A was that even the partition made in the year 1957 was for another reason incomplete by reason of the exclusion of the properties which formed the subject-matter of the litigation between the two brother. But the partition had become complete and full by reason of the release deed executed by the son in favour of the father on June 13, 1960.
7. The Income-tax officer refused to give the assessee the order which he wanted on the ground that the release by the son was a release only from the litigation and was from every angle uncertain and vague. He was also of the opinion that the release deed was got up to procure an order under section 25A and that the 'claim of release was bogus'. In the appeal presented to the Assistant Commissioner, he took the view that when there were certain properties which still formed the subject-matter of determination in the litigation between the two brothers, it was not known which items would fall to the share of the assessees' family and that therefore the arrangement recorded in the release deed could not come into being. But the Tribunal, in the further appeal, stated thus :
8. It is no doubt true that, before the assessment is completed, an application under section 25A could be made. But, in this case, one has already been made for the assessment year 1953-54. Further, what properties Esthuri Aswathiah would get and what would be the assessee's share, nobody knows. In that state of uncertainty, by the passing of Rs. 3,000 from one sharer to another, it cannot be said a partition by metes and bounds has taken place. In truth, the estate of Esthuri Aswathiah and his Hindu undivided family has not been defined yet, when only will the question of partition between Esthuri Aswathiah and his son, Esthuri Sriramiah, arise.'
9. Although the Income-tax Officer recorded a finding that the claim of release was 'bogus', no such finding was recorded either by the Assistant Commissioner of Income-tax or the Appellate Tribunal. The finding of the Tribunal on the contrary was that the son did execute a release deed in favour of his father and that the consideration for the release consisted of a land and a sum of Rs. 3,000 in cash. But the main reason for which the Tribunal felt impelled to take the view was that, not withstanding the execution of that release deed completing the partial partition made on the earlier occasion, it was not possible to ascertain what property the father would get in the litigation which was pending between him and his brother.
10. Now it is clear that on March 29, 1957, there was an incomplete partition. In the opinion of the High Court it was incomplete, since it did not include the properties which formed the subject-matter of the litigation between the two brothers. It now transpires that, in addition to those properties, there was a vacant land which had not been partitioned on that occasion. Now under the release deed that vacant land was taken by the son who also received from the father a sum of Rs. 3,000 in cash and in consideration threreof, he renounced all his rights in the properties which formed the subject-matter of the suit between the two brothers. The father became entitled to all the properties which he could get for his share in that litigation and also became responsible for all the obligations flowing from the ultimate decision thereon.
11. It was contended by Mr. Srinivasan appearing for the assessee that the incomplete partition made in the year 1957 became complete with the execution of the release deed. We take the view that the release deed has that effect. What remained to be partitioned after the execution of the partition deed in the year 1957 consisted of the estate which was the subject-matter of litigation between the two brothers and the vacant land to which the release deed refers. But Mr. Rajasekhara Murthy appearing for the Commissioner asked us to say that it is just possible that there may still be other items of properties which remain to be divided. It is clear that there is no material on the basis of which that submission could be made. Even those properties which were not divided in the partition of 1957, and whatever might have fallen to the share of their family in that litigation have now become the property of the father who has also become responsible for all the liabilities emanating from the decision therein. One land now belongs to the son who has also received from the father a sum Rs. 3,000. That being so that no one knows what property might fall to the share of the father in the litigation between himself and his brother cannot make a partition, which has become complete, incomplete. Whatever may be that property, in that property the son has no longer a share since the whole of the property under the terms of the release deed belongs to the father. In that view of the matter, in consequence of the release deed executed in the year 1960, the incomplete partition made in the year 1957 became complete and there was a partition in definite portions between the father and the son at least on June 13, 1960, within the meaning of section 25A of the Act.
12. But Mr. Rajasekhara Murthy contended that, since the application under section 25A was made during the pendency of the assessment proceedings relating to the assessment year 1956-57 and the release deed by which the partition became complete was executed only in the year 1960, the assessee could not seek an order under section 25A. It was urged that an application under that section could be made only when partition is made during the previous year relating to the assessment year concerned of which the assessment is in progress and that during the pendency of an assessment proceeding relating to a period antecedent to the date on which the partition was made no application could be made under section 25A. It does not appear to us that we could accede to this contention.
13. Section 25A makes it permissible for the assessee to ask the Income-tax Officer to record a finding that a partition has taken place, if he is making an assessment under section 23. Section 25A which says that 'where at the time of making an assessment under section 23' does not say that the assessment should relate to the year during which the partition was made. So long as the Income-tax Officer is making an assessment relates, the assessee can seek a finding from him that there has been a partition, whether or not the partition has any impact or relevance to the assessment which is being made. It is surely not necessary for the assessee to wait until the assessment is made with respect to the year during which the partition was made before he could seek an order under section 25A. That is the true meaning to be given to that section is what is clear from the decision of the Supreme Court in Lakhmichand Baijnath v. Commissioner of Income-tax in which it was explained that when an application is made under section 25A, what the Income-tax Officer has to decide is whether there has been a partitioned in definite portions. What was further explained was that the question as to what the income of the family assessable to tax under section 23(3) entirely depended upon the assessment under that section and was alien to the scope of the enquiry under section 25A.
14. The later decision of the Supreme Court in Kalwa Devadattam v. Union of India, to which Mr. Rajasekhara Murhty asked attention, does not state the law. All that was explained in that case was that, if an order was recorded under section 25A that there was a partition among the members of the family in definite portions, each member or group of members between whom there was a partition was liable for a share of the tax on the family income, but that the members of the family continued to remain jointly and severally liable for the tax assessed on the total income received by the family as such. This elucidation made by the Supreme Court makes it abundantly clear that the question whether there should be an order under section 25A of the Act does not depend upon the fact whether the income which is the subject-matter of the assessment is family income or income which was derived after there was a partition but whether there was a partition as stated by the assessee, whatever may be the date of such partition.
15. We should, therefore, answer the question before us in favour of the assessee. Our answer is that the assessee is entitled to an order under section 25A(1) of the Income-tax Act, 1922, by reason of the release deed executed on June 13, 1960, and the earlier partition made on March 29, 1957. The assessee will be entitled to his costs. Advocate's fee Rs. 250 (two hundred and fifty).
Ahmed Ali Khan, J.
16. Question answered in favour of the assessee.