Joint Family Of Udayan Chinubhai Etc v. Commissioner Of Income-Tax, Gujarat

JOINT FAMILY OF UDAYAN CHINUBHAI ETC. COMMISSIONER OF INCOME-TAX, GUJARAT October, 14 1966 [J.C. SHAH, V. RAMASWAMI AND V. BHARGAVA, JJ.) Indian Income-tax Act (11of1922), s. 25A ands. 34- Order record· ing partition of Hindu undivided family-Power to reassess family as a unlt thereafter-Wh•ther exlsls. C. his wife, and his three sons were originally assessed to income-tax in the status of a Hindu undivided family. C filed a suit in 1948 iu the High Court of Bombay for partition and separate possession of his share in c the joint family estate. In 1950 the High Court passed a decree. by consent declarine that as from October 15, 1947 the joint family stood dissolved, that all the members of the family had become separate in food, worship and estate from th"at date, and that each member of the family was entitled to a fifth share in the properties movable and im-movable belonging to the family subject to the right of maintenance in favour of C's mother. Pursuant to the decree C took his share in D the properties allotted to him, separately. The other properties remained undivided between C's wife and his three sons each holding a fourth share as tenant in common witfi the other co-sharers. In December 1952, C applied to the Income-tax Officer for an order recording the partition and requesting that assessment be made of the members of the family separately in .accordance with the pro\isions of s. 23 read with s. 25A of the Income-tax Act, 1922. The Income-tax Officer by an order in January 1953 granted the application and for the period after tho High E Court's decree assessed all the members of the erstwhile family sepa-rately. Subsequently however a notice under s. 34 of the Act for the assessment years 1951-52, 1952-53, and 1953-54, for assessing the Hindu undivided family of four members, namely, C's wife and bis sons, was issued on the ground that the income of the family bad escaped assess-ment. The assessees' plea that they did not, in the years of assessment, ccnstitute a Hindu undivided family and that they could not be so assessed after an order under s. 25A had . once been passed was not F accepted by the Income-tax Officer. The Appellate Assistant Commi•-sioner reversed the Income-tax Officer's order but the Appellate Tribunal testored it. The High Court in reference held in favour of the Revenue. The assessee came to this Court in appeal. HELD : (i) The Income-tax Officer has jurisdiction under s .. 25A(l) to make an order recording . that joint family property baa been parti-tioned if he is satisfied that the property has been partitioned 'in deflnite G portions'. The jurisdiction may be exercised by the Income-tax Officer even if there be partition between 'groups of members' of the family. A complete partition in definite portions among all the members of the family is not a condition of the exercise of that jurisdiction, nor doeo the expression 'group ot members' refer only to a group consisting of a bead of a branch and his sons who remain undivided. [916 G-HJ In the present case there was no doubt that C took .possession of bis H share in the family estate which was allotted to him. The asse.ssees con-stituted a group and between them and C there bad been a partition in definite portions. The conditions for the passing ot an order under s. 25A(l) were thus satisfied. [918 A-Bl (ii) Afler !be High Court had decreed the partition the orisiAal 1& divided family bad no existence in fact or in point of law-personal or iDl:ome-tax. Section 25A(3) did not help the Revenue for it oa!J requirea the Income-tu Officer to continue to asses• a Hindu undivided fulily Wllich baa been divided under the pel'80Dlll law as Jong as i:o order under s. 25A(I) bas been recorded. Once an order under s. 25A(l) bas been recorded cl. (3) of s. 25A bas no application. [918 DJ