TMI Blog1997 (2) TMI 7X X X X Extracts X X X X X X X X Extracts X X X X ..... Maharaja ? " By the impugned judgment the High Court has answered the said question against the Revenue and in favour of the assessee. The High Court has placed reliance on its earlier decision in Kalloomal Tapeshwari Prasad v. CIT [1973] Tax LR 697. Briefly stated the facts are as follows. Maharaja P. P. Singh of Balrampur was being assessed as an individual up to and including the assessment year 1964-65. He had no issue of his own. On December 28, 1963, he adopted Maharaja Dharmendra Pratap Singh, who was a minor, as his son. After the said adoption, the status of Maharaja P. P. Singh was taken as that of the Hindu undivided family. Maharaja P. P. Singh died on June 20, 1964. Thereafter his wife, Maharani Rai Laxmi Devi, became the karta of the Hindu undivided family consisting of herself and the aforesaid minor son, Maharaja Dharmendra Pratap Singh. For the assessment year 1966-67, the assessee filed a return declaring the total income of the Hindu undivided family as Rs. 28,935. Subsequently, she filed another return showing the total income as Rs. 25,288. The difference between the original and revised returns was explained on the basis that the revised return had been f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hwari Prasad [1973] Tax LR 697 (All). Hence, this appeal. Shri P. A. Choudhary, learned senior counsel appearing for the Revenue, has argued that the High Court was in error in upholding the view of the Tribunal that section 171 of the Act was not applicable in the present case. Shri Choudhary has pointed out that the decision of the High Court in Kalloomal Tapeshwari Prasad [1973] Tax LR 679 (All) on which reliance has been placed by the High Court in the impugned judgment has been reversed by this court in Kalloomal Tapeswari Prasad (HUF) v. CIT [1982] 133 ITR 690, and the said decision has been followed in the later decisions in ITO v. Smt. N. K. Sarada Thampatty [1991] 187 ITR 696, and R. B. Tunki Sah Baidyanath Prasad v. CIT [1995] 212 ITR 632. Shri Janendra Lal, learned counsel for the assessee, has sought to distinguish the aforementioned decisions of this court on the ground that in those cases partial partition was claimed to have been effected and they fell within the ambit of section 171 of the Act. The submission is that in the present case there was inheritance of the share of the late Maharaja P. P. Singh by his widow and minor son under section 6 of the Hindu Suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no claim made that a partition--total or partial--had taken place or where it is made and disallowed a Hindu undivided family which is hitherto being assessed as such will have to be assessed as such notwithstanding the fact that a partition had in fact taken place as per Hindu law. A finding to the effect that partition had taken place has to be recorded under section 171 by the Income-tax Officer. We have already held that section 171 of the Act applies to all partitions--total and partial--and that unless a finding is recorded under section 171 that a partial partition has taken place the income from the properties should be included in the total income of the family by virtue of sub-section (1) of section 171 of the Act. " This court has taken note of the decision of the Madras High Court in A. Kannan Chetty v. CIT [1963] 50 ITR 601, 612, wherein it was observed : " For instance, if the karta of a family effects an alienation or even makes a gift, in so far as the taxing department is concerned, it is the income of the members of the Hindu undivided family that can be assessed, and if by reason of an alienation, whether it is binding upon the members of the joint family ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and business was assessable in the hands of the Hindu undivided family and the balance in the hands of the adopted son, Nand Kumar. In the subsequent years 1972-73 to 1975-76, the Income-tax Officer rejected the assessee's contention that the income was liable to be divided 50 : 50 between the Hindu undivided family and the adopted son, Nand Kumar, and assessed the entire income as income of the Hindu undivided family. The said view of the Income-tax Officer was upheld by the Appellate Assistant Commissioner but the Tribunal held that only 50 per cent. of the income should be assessed as the income of the Hindu undivided family leaving the balance 50 per cent. to be assessed as the income of the adopted son, Nand Kumar. The High Court, on a reference, reversed the view taken by the Tribunal and upheld the view taken by the Appellate Assistant Commissioner. Before this court the question for consideration was whether compliance with the provisions of section 171 of the Act was necessary. This court has laid down : " Sub-section (1) of section 171 in terms provides that a Hindu undivided family hitherto assessed as undivided shall be deemed for the purposes of this Act to continu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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