TMI Blog1994 (12) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... n the demise of the karta, Raj Bahadur Tunki Sah, in 1955, his son, Baidyanath, became the karta of the Hindu undivided family. The widow of the deceased, Budhi Devi, was entitled to a limited interest in the property under the provisions of the Hindu Women's Right to Property Act, 1937. However, on the coming into force of the Hindu Succession Act, 1956, her limited interest turned into an absolute one and she acquired absolute ownership rights under section 14(1) of the said Act. Budhi Devi died in 1960 or thereabouts and her share in the property was inherited by her only son, Baidyanath. Baidyanath and his wife, Godawari Devi, adopted Nand Kumar as their son some time in 1961, Thereafter, on May 3, 1969, Baidyanath executed a registered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded family. In further appeal in regard to the assessment years 1972-73 and 1973-74, the Income-tax Appellate Tribunal upheld the assessee's contention that the income was divisible in equal shares and that the Hindu undivided family could be assessed for 50 per cent. of the income only leaving the balance 50 per cent. to be assessed as income in the hands of the individual adopted son, Nand Kumar. For the subsequent years also, the Tribunal in separate appeals passed similar orders. The appeals of Nand Kumar were also similarly accepted by the Tribunal. The question came to be referred to the High Court in regard to the order passed by the Tribunal in the appeals referable to the assessment years 1972-73 and 1973-74. Similar orders came to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or partial partition of the joint family property and if there has been any such partition, the date on which it took place. The Explanation defines the expression "partition" to mean : " (i) where the property admits of a physical division, a physical division of the property, but a physical division of the income without a physical division of the property producing the income shall not be deemed to be a partition, or (ii) where the property does not admit of any physical division, then such division as the property admits of, but a mere severance of status shall not be deemed to be a partition. " The expression "partial partition" has been defined in clause (b) as a partition which is partial as regards the persons constituting the H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act only. The underlying idea seems to be that unless an inquiry is undertaken and existence of total partition or partial partition, as the case may be, is found as a fact and recorded along with the particulars in regard to date, etc., in the eye of the income-tax law, the Hindu undivided family continues to be assessable to tax as if there has been no change in the situation for the purposes of the Act. An attempt was made by learned counsel for the appellants to contend that since in the previous orders the Income-tax Officer had held that Baidyanath had become the owner of his mother's share in the property which share was later transferred by gift inter vivos to his adopted son, the Hindu undivided family can only be taxed on 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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