TMI Blog1960 (11) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... commenced on April 1, 1955. In the course of these assessment proceedings Raju claimed that the tea and coffee plantations had been divided between himself and his sons, a portion also being set aside for his wife, and that each of them should be assessed separately on the income that had been derived from the lands allotted to his or her share. On August 8, 1956, the Agricultural Income-tax Officer passed an order under section 29(1) of the Act, an order which apparently the assessees sought. The Agricultural Income-tax Officer recorded that he was satisfied that the joint family properties had been partitioned among the assessees in definite shares, that is, between Raju and his five sons. This was followed up by individual orders of asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Commissioner dated July 22, 1957, that has been challenged in this petition to revise that order. Though the assessees themselves apparently sought the order under section 29(1) of the Act in the assessment proceedings before the Agricultural Income-tax Officer, it should be clear that section 29(1) could have no application at all. Section 29(1) could be invoked by persons of a family who had been assessed as a Hindu undivided family to agricultural income-tax. The proceedings related to the first of the assessment years 1955-56. There has been no assessment to income-tax prior to 1955-56. We shall illustrate our point by an example. If there had been a division in status, whether or not there had been an actual division of the proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessed, or whether the income of all was liable to be assessed in the hands of Raju as the karta of a Hindu undivided family. The Commissioner took the view that the document dated March 9, 1955, came within the scope of section 9 of the Act. If the claim of the petitioner was that there had been a real partition in 1951, followed even then by an actual division on ground of the tea and coffee plantations, which partition was evidenced subsequently by the deed dated March 9, 1955, it would be a case of disposition of property by a settlement within the scope of section 9 of the Act. It is not the nomenclature given to the document that really concludes the real nature of the transaction. In the document, dated March 9, 1955, there was no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en himself and his sons, with a provision for Raju's wife for her lifetime. That would be consistent with a division in status or it would possibly be that without a division in status there was a partial partition of joint family properties. In either case, if there had been such a partition before the commencement of the previous year in relation to the assessment year 1955-56, the income from the properties so partitioned and allotted to the several members of the family could not be clubbed together for purposes of taxation and treated as income of the joint family. The question will have to be investigated afresh and in accordance with all the materials placed before the Commissioner. We have referred to the finding of the Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the members of the family were individually liable to be assessed on the sale of tea grown on the lands that had been allowed to their shares. There was thus evidence that the partition of 1951 had been acted upon and recognised by the commercial tax department. What conclusion the Commissioner should come to on the factum of partition of 1951 will be for him to decide in the first instance. Only it will have to be based on the entire material placed before him. He certainly did not consider the entire material when he records his conclusion that it was a sham transaction brought about to evade liability to pay agricultural income-tax. The order of the Commissioner dated July 22, 1957, is set aside and the proceedings are remanded to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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