TMI Blog1962 (6) TMI 58X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment of the income in the hands of the Hindu undivided family was correct ? (iii)Whether the Appellate Assistant Commissioner was entitled to correct the status ? Sri K. Srinivasan, learned counsel for the assessee, did not press question No. 3 and, therefore, it is not necessary for us to pronounce on the same. The material facts as set out in the statement of the case submitted by the Tribunal are as follows : One Gowli Buddappa and his brother's son, Gowli Buddanna (subsequently adopted as son of the former) were the coparceners of a Hindu undivided family. Till the death of Buddappa, their undivided Hindu family was assessed to income-tax. Gowli Buddappa died on July 9, 1952, leaving behind him his wife, three ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... than one coparcener, there cannot be an assessment on a Hindu undivided family. This view appears to have commended itself to the Calcutta High Court in In re Moolji Sicka [1935] 3 ITR 123. Speaking for the Bench tort-Williams J. observed thus at page 136 : The necessity for making Hindu undivided families liable as such for income-tax was, that the income and property of Hindu undivided family is undivided. The members have no separate income or property and cannot, therefore, be taxed as individuals. According to Mitakshara, until partition it cannot be said of any member that he has any definite share in the joint property. But an Income-tax Act obviously is concerned only with income available for taxation and the owners of such i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of a joint Hindu family as Lort-Williams J. seems to think in the Calcutta case referred to below. The question raised is whether the assessee is to be assessed as an individual or as a member of the joint Hindu family, and the importance of the question lies in this, that for the purposes of super-tax he will be allowed a large exemption if he is taxed as the manager of a joint Hindu family than if he is taxed as an individual. A little lower down in the judgment, the learned judge proceeded to observe as follows: The nature of a Hindu undivided family was perfectly well known to the legislature when the Income-tax Act was drafted, and it was well known that the expression 'Hindu undivided family' includes females, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court referred to above. In our opinion, if we may say so with respect, this decision lays down the law correctly. It accords with the principles of Hindu law. We had earlier mentioned that the decision of the Calcutta High Court in In re Moolji Sicka [1935] 3 ITR 123 had been taken to the Judicial Committee in appeal. The decision of the Judicial Committee is reported as Kalyanji Vithaldas v. Commissioner of Income-tax [1937] 5 ITR 90 ; AIR 1937 PC 36. The Judicial Committee disagreed with the view of the Calcutta High Court as regards the meaning to be given to the expression Hindu undivided family found in section 3 of the Indian Income-tax Act, 1922. Sir George Rankin, speaking for the Judicial Committee, observed: The phras ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... doubtedly helps him in a way. The learned judges who decided that case opined that the Judicial Committee in Kalyanji's case ( supra) had decided that the existence of a step-mother to a sole surviving coparcener is not sufficient to convert the income of the ancestral property into an income of a Hindu undivided family. We really fail to see how this conclusion follows from the decision of the Judicial Committee in Kalyanji's case (supra) . Obviously, the learned judges in the Madras case proceededon the basis that though the family of the assessee in that case is a Hindu undivided family, the assessee being solely entitled to the income of the family property, he must be considered to be the sole owner of that income. This view, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as at the end of the previous year either of the following conditions, namely : (a)that it has at least two members entitled to claim partition who are not less than 18 years of age ; or (b)that it has at least two members entitled to claim partition neither of whom is a lineal descendant of the other and both of whom are not lineally descended from any other living member of the family; and (ii)Rs. 3,000 in every other case. We do not think that this clause in any manner helps the contention of Sri Srinivasan. The legislature must be presumed to have known the view expressed by the Judicial Committee as well as by the Bombay High Court as regards the scope of the expression Hindu undivided family . Still, it did not th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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