JAGDISH SAHAI J. - This is a reference made by the members of the Agricultural Income-tax Revision Board, U.P., in pursuance of a direction given by this court on 16th of August, 1956. The question referred to us is in the following words :
'Whether in the circumstances of the case it could be said that there was material on which the Board could base its finding that there was no intention on the part of the assessee to separate ?'
The facts as given in the statement of case are as follows :
The assessing authority, the Sub-Divisional Officer, Saharanpur, had passed an order on the 14th of September, 1950, on an application made by the assessee, L. Parduman Kumar, with his return, alleging that there was the partition in the joint family consisting of himself, his son, Deo Kumar, and their respective wives on 25th September, 1948, and ever since, all the four members had become separate in status. The assessing authority on September 14, 1950, allowed that application and held, that a partition had taken place in the family of the assessee and that all the four separated members should be assessable. The State filed four revision applications against each of the four members, i.e., L. Parduman Kumar, his wife, Smt. Kanchan Bai, his son, Deo Kumar, and his wife, Smt. Raj Kumari. The Board allowed the revision applications holding that there was no partition in effect as there was no intention to separate and directed the assessment to be made of the entire income in the hands of L. Parduman Kumar and not as that of the four separated members. Before assessing authority, L. Parduman Kumar had filed the mutation order directing the entry of the names of all the four members mentioned above against the properties given to them in partition, the khewats of various village which were given to each of the separated members and in which the name of that member alone was entered in the column of proprietors. In addition, the assessees also filed receipts showing separate collection, a tamleeknama whereby some property had been given to a trust called Parduman Trust for Charitable Purposes and rent account which were separately maintained in respect of the property allotted in partition to each of these four members. The Board, however, came to the conclusion that even though these documents evidenced partition, inasmuch as it did not appear that the property allotted to each member was equal of his share under the Hindu law it appeared to them that the proceedings for partitions were fictitious and collusive and they in fact had no intention to separate. There was no evidence before the Board that the properties given to each member were not proportionate to his share under the Hindu law. The Board inferred the fact that the property was not equal to the share, because some of the members have been given three villages, while others one. In our judgment, whether the property was in proportion to the share of a particular member did not depend upon the number of villages he received, but upon the income and the value of the property he has received. One village may have more income and value than three villages.
Having heard learned counsel for the parties, we are satisfied that there was intention on the part of the assessee to separate. The learned Senior Standing Counsel has not been able to bring to our notice any material on which the Board would have been justified in recording such finding. We, therefore, answer the question referred to us in the negative, against the department and in favour of the assessee. We also award costs to the assessee which we assess at a figure of Rs. 100.