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TMI Blog1976 (2) TMI 62X X X X Extracts X X X X X X X X Extracts X X X X ..... that the income from Sri Lakshmi Medical Stores was not returned as the income of the family, but it was returned by Sri Venkataratnam as an individual. The assessment was also made in that fashion. Similarly for the asst. yr. 1971-72, which is the year under appeal, Sri Venkataratnam returned the income from Shri Lakshmi Medical Stores and it was assessed on his hands. But when it came to the assessment of the family, the ITO took a different approach and he though that the income from Shri Lakshmi Medical Stores cannot be excluded from the income of the family as there was no order under s. 171. For coming to this conclusion, he observed that the relinquishment deed actually operated as a partial partition and since no claim for partial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... family. He has also argued that there was no claim made for recording a finding under s. 171 and as such the third contention of Mr. Swamy cannot be accepted. 5. The deed of relinquishment dt. 21st July, 1969 clearly points out that Sri Venkataratnam when out of the family by relinquishing all his share, which is described as a right to partition in the immovable and movable properties of the family. He received movable articles worth Rs. 13,000 evidently in the shop run as Shri Lakshmi Medical Stores. In substance, the entire medical stores, the value of which has been determined at Rs. 13,000, has been given away of Shri Venkataratnam in lieu of his share and in lieu of his relinquishing all his rights in the joint family. We think that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n under s. 171, the income should be continued to be assessed as belonging to the family. On the other hand, Mr. Swamy brought to our notice the decision of the Tribunal (to which one of us is a party) in ITA No. 1318/Hyd/1971-72 and 95/Hyd/1973-74, dt. 31st Dec., 1973, that even though there is no order under s. 171 in respect of partial partition there is nothing wrong in holding that the income from a particular asset ceased to belong to the joint family. However, we may point out that the point that arose in that decision is slightly different. It may be that Mr. Swamy is right to some extent. When once an asset ceases to belong to the joint family, even though on partial partition is recorded, the income from that asset cannot be inclu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Court in Kalwa Devadatham & Ors. vs. Union of India & Ors. (1958) 33 ITR 56). The passage on which Mr. Bhaskararao relied on occurs at page 61 : Their Lordships noticed the statement made by one of the members of the family. To quote :-- "The recitals on which reliance is placed is that document are these : 'I am at present living singly. My sons divided from me about ten months back. There is a document to that effect. One of them was a major and two of them are minors. The guardian to these minor children is my wife. I divided my properties between myself any my children.' The question for determination is whether this amounts to a claim that a partition had taken place as envisaged under s. 25A. In our judgment, the statement refer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the statement of Shri Dara Seshavataram. There is nothing wrong in allowing the claim. We may again repeat that this finding of ours is on the basis of the contention of the Revenue that unless there is an order under s. 171, the income from that particular source should be included in the hands of the joint family. Nevertheless, the contention of the assessee that even without that order the same can be included has force in view of the observations made in the order in ITA No. 1318/Hyd/1971-72 and No. 95/Hyd/1973-74, to which we have made a reference earlier. 8. Normally we would have sent the case back to the ITO for passing proper order under s. 171 recording partial partition, but it is unnecessary to do as the assessee succeeds ..... X X X X Extracts X X X X X X X X Extracts X X X X
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