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Commissioner of Income-tax Vs. Jagdish Lal and Sons - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtAllahabad High Court
Decided On
Case NumberIncome-tax Application Nos. 120, 178 and 179 of 1983
Judge
Reported in(1985)45CTR(All)92; [1986]157ITR620(All)
ActsIncome Tax Act, 1961 - Sections 171 and 256(2)
AppellantCommissioner of Income-tax
RespondentJagdish Lal and Sons
Appellant AdvocateBharatji Agrawal ;and M. Katju, Advs.
Respondent AdvocateR.K. Gulati, Adv.
Excerpt:
- .....the facts and in the circumstances of the case, the tribunal was legally correct in excluding the share income from m/s. jyoti finance corporation, shamli, in view of the decision of the commissioner of income-tax (appeals), meerut, for the assessment year 1974-75 '2. the facts, briefly, are that in respect of certain assets of the assessee-hindu undivided family, there was a partial partition on july 1, 1972, relevant to the assessment year 1974-75. the assessee-hindu undivided family represented by its karta was a partner in a firm, namely, m/s. jyoti finance corporation, shamli, prior to the date of partial partition. in the partial partition, the share income from the aforesaid firm constituting an asset was divided among the karta of the assessee-hindu undivided family and his sons.....
Judgment:

Om Prakash, J.

1. Raising the following identical question, the Revenue has made these applications under Section 256(2) of the Income-tax Act, 1961 (for short 'the Act of 1961 '), relating to the consecutive assessment years 1975-76 to 1977-78:

' Whether, on the facts and in the circumstances of the case, the Tribunal was legally correct in excluding the share income from M/s. Jyoti Finance Corporation, Shamli, in view of the decision of the Commissioner of Income-tax (Appeals), Meerut, for the assessment year 1974-75 '

2. The facts, briefly, are that in respect of certain assets of the assessee-Hindu undivided family, there was a partial partition on July 1, 1972, relevant to the assessment year 1974-75. The assessee-Hindu undivided family represented by its karta was a partner in a firm, namely, M/s. Jyoti Finance Corporation, Shamli, prior to the date of partial partition. In the partial partition, the share income from the aforesaid firm constituting an asset was divided among the karta of the assessee-Hindu undivided family and his sons and thereafter the share income ceased to be the income of the assessee-Hindu undivided family. The constitution of the firm also underwent a change, as after the partial partition, the Hindu undivided family ceased to be the partner and the members of the Hindu undivided family who acquired the share in the firm on partition, became partners in the firm. The order passed under section 171 of the Act of 1961 was appealed against by the assessee-Hindu undivided family and its contention was accepted by the Commissioner of Income-tax (Appeals). No appeal was preferred by the Revenue against the order of the Commissioner of Income-tax (Appeals). For the following years also, share income from the firm was added by the assessing authority in the hands of the Hindu undivided family. On appeal, the Tribunal accepted the contention of the assessee that in view of the partial partition effected in the assessment year 1974-75, the share income from the firm, M/s. Jyoti Finance Corporation, Shamli, could not be included in the hands of the assessee-Hindu undivided family. The question for consideration in these three applications is: whether the share income from the firm stood divided in the partial partition among the karta and his sons and whether from the date of partial partition, the members of the Hindu undivided family who acquired the share, became partners of the firm These are purely questions of fact. There is no case of the Revenue that the terms of the partial partition are otherwise and from the date of partition, the Hindu undivided family itself represented by its karta, continued to be the partner in the firm.

3. Then, Sri Markandeya Katju, learned standing counsel, argues that the validity of the partial partition can be questioned in the following years. Sri Gulati, learned counsel for the assessee, relied on a decision of the Supreme Court in the case of Joint Family of Udayan Chinubhai v. C1T : [1967]63ITR416(SC) . In the said authority, the Supreme Court had ruled as follows (p. 423):

' A decision reached in one year would be a cogent factor in the determination of a similar question in a following year, hut ordinarily there is no bar against the investigation by the Income-tax Officer of the same facts on which a decision in respect of an earlier year was arrived at But this rule, in our judgment, does not apply in dealing with an order under Section 25A(1). Income from property of a Hindu undivided family, ' hitherto' assessed as undivided, may be assessed separately if an order under Section 25A(1) had been passed. When such an order is made, the family ceases to be assessed as a Hindu undivided family. Thereafter, that family cannot be assessed in the status of a Hindu undivided family unless the order is set aside by a competent authority. '

4. This being so, learned standing counsel cannot agitate the validity of the partial partition in the instant years.

5. In the result, all the three applications are dismissed with one set of costs of Rs. 150.


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