TMI Blog1973 (6) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... - - - Dated:- 1-6-1973 - Judge(s) : SABYASACHI MUKHERJEE., HAZRA. CALCUTTA High Court JUDGMENT SABYASACHI MUKHARJI J.-In this reference under section 27(1) of the Wealth-tax Act, 1957, the following question has been referred to this court : "Whether, on the facts and in the circumstances of the case, the assessment for the year 1957-58 under the Wealth-tax Act, 1957, was correctly made on the assessee as a Hindu undivided family ? " The reference arises out of the assessment made on the assessee in the status of Hindu undivided family for the assessment year 1957-58, for which the relevant valuation date is 2nd of November, 1956. The Hindu undivided family known as M/s. Kaniram Hazarimal was assessed to income-tax in such st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being the said valuation date. Hence, there was no Hindu undivided family on the said valuation date. The Appellate Assistant Commissioner rejected both these contentions. It may be mentioned that the second contention urged before the Appellate Assistant Commissioner was not pressed before us at the hearing of this reference. It appears that there was an award by an arbitrator in the partition suit referred to hereinbefore and the said award had been accepted by the High Court and a decree was passed in accordance with the said award. The award of the arbitrator mentions, inter alia, as follows : " I award, adjudge and declare that the parties to the said Suit No. 359 of 1956. (Vijoy Kumar Kejriwal v. Indrachand Kejriwal Ors.) were me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal was of the opinion that there was an arbitration in the suit proceeding and the award had been accepted by the High Court and the decree was passed in accordance thereof. The date mentioned in the decree was 2nd of November, 1956. Therefore, according to the Tribunal it was not open to the assessee to contend contrary to the decree passed against it. The Tribunal also referred to the provisions of section 20 of the Wealth-tax Act, 1957, and held that the assessment had been properly made. As mentioned hereinbefore, the assessee had not been subjected to wealth-tax before as the Wealth-tax Act came into existence from the 1st of April, 1957. It has been held by the decision of this court in the case of Srilal Bagri v. Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was filed by Sri Vijoy Kumar Kejriwal. It has been recognised by the Judicial Committee and the Supreme Court that the institution of a suit for partition by a member of the joint family governed by the Mitakshara law was an unequivocal intimation of his intention to separate and, secondly, there is a severance of his joint status from the date when it is instituted. Reliance may be placed on the decision in the case of Kawal Nain v. Budh Singh and the decision of the Supreme Court in the case of A. Raghavamma Co. v. A. Chenchamma, the decision in the case of Syed Kasam v. Jorwar Singh, Girja Bai v. Sadashiv Dhundiraj and also the decision of the Supreme Court in the case of Puttrangamma v. M. S. Ranganna. It is true that an unequivocal e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e burden was certainly on the person who had set up partition to prove the said fact. Counsel for the assessee on the other hand drew our attention to the observations of the Privy Council in the case of Balabux Ladhuram v. Rukhmabai, to the effect that there was no presumption when one coparcenary separated from the others that the latter remained united and an agreement amongst them should be proved either to remain united or to reunite. Reliance was placed on the observations of Lord Davey at page 137. Counsel also drew our attention to the observations of the Judicial Committee in the case of Bal Krishna v. Ram Krishna. It is however, not necessary for us in this reference to embark upon this controversy whether in a Mitakshara Hindu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had been made a subject-matter of a decree of this court to which the present assessee is a party as well as the members of the family. There are also other factors like filing of the returns. It may be that the Tribunal was not correct to say that it was not open to an assessee to contend after the award anything contrary but the Tribunal is right in considering the entirety of evidence and it appears to us the Tribunal has considered the entire evidence available on the question, viz., when did the Hindu undivided family separate or disrupt and when this unequivocal intention of separation was really expressed. Therefore, having considered the entirety of evidence, the Tribunal has recorded that the Hindu undivided family had continued ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
