TMI Blog1999 (12) TMI 7X X X X Extracts X X X X X X X X Extracts X X X X ..... order of the Commissioner of Income-tax under section 263 was bad in law and was without jurisdiction, as no notices were served on the other members of the family? 2. Whether, on the facts and in the circumstances of the case, the Tribunal was legally correct in holding that the partial partition between the two groups effected on January 1, 1971, was valid under the Hindu law?" We have heard Sri Shambhoo Chopra, learned counsel for the Commissioner, and Sri Neeraj Agarwal, learned counsel for the assessee-respondent. We may mention that similar questions were referred to this court for the assessment years 1973-74 and 1974-75 in ITR No. 303 of 1980 which has been decided by this court vide order dated December 1, 1999, answering qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... van Cold Storage Brahma Swarup and to be continued in standing in the name his name in the firm, Sharvan Cold Stor- of Lala Brahma age and General Mills Swarup. ------------------------------------------------------------------------------------------------- Lala Brahma 1/2 of 6/48 share in profits or 8/48 in loss Rs.12,500 (twelve Swarup and standing in the name of Sri Brahma thousand five hun Govind Swarup Swarup and 1/2 of the reserves pertaining dred only). in one group to the said Lala Brahma Swaru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e passing an order under section 263 of the Act, notice had not been given to all the members of the Hindu undivided family. The other reason was that the partition in the manner aforesaid was valid. A similar partition effected in the small Hindu undivided family of Sharvan Kumar Swarup was the subject of consideration by this court in CIT v. Sharwan Kumar Swarup and Sons [1998] 232 ITR 123, in which a similar partition in which the members took certain shares in groups was held to be valid. The court held that a partition can be partial qua the properties as well as qua the persons and that when a property is held by two groups and if the share of each group is well defined, the requirement of partial partition will stand fulfilled. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ke place in a manner that the properties are allotted to groups was not before the Supreme Court. Reliance is also placed by Sri Chopra on CIT v. Venugopal Inani [1999] 239 ITR 514, in which also it was held that where the assets were not divided by metes and bounds, the partition could not be recognised for the purposes of the Income-tax Act. In that case also there was only an ascertainment of share of the various persons in certain properties and it was admitted by the assessee that they have not divided the joint properties by metes and bounds. Therefore, this judgment of the Supreme Court is also not apposite to the facts and circumstances of the present case. Clause (b) of the Explanation to section 171 of the Income-tax Act define ..... X X X X Extracts X X X X X X X X Extracts X X X X
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