TMI Blog2005 (8) TMI 46X X X X Extracts X X X X X X X X Extracts X X X X ..... question referred to us in the negative, i.e., in favour of the Revenue and against the assessee - - - - - Dated:- 8-8-2005 - Judge(s) : R. K. AGRAWAL., PRAKASH KRISHNA. JUDGMENT The Income-tax Appellate Tribunal, New Delhi, has referred the following question of law under section 256(1) of the Income-tax Act, 1961 (hereinafter referred to as "the Act"), for opinion to this court: "Whether, in view of the facts and circumstances of the case, the Income-tax Appellate Tribunal was legally correct in holding that the Assessing Officer was not right in applying the provisions of subsection (9) of section 171 of the Income-tax Act, and also in directing him to record the finding relating to the partition as claimed by the assessee?" ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 171 of the Income-tax Act. The matter ultimately reached the Tribunal at the instance of the assessee. The Tribunal in appeal took the view that in view of section 6 of the Hindu Succession Act a complete partition has taken place as claimed by the assessee. The Tribunal has placed reliance upon a judgment of the Supreme Court in the case of Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum [1981] 129 ITR 440. Heard counsel for the parties. The Supreme Court in Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum [1981] 129 ITR 440; AIR 1978 SC 1239, has interpreted section 6, its proviso and Explanation 1 with a view to ascertain the share of the deceased's widow in the coparcenary property. In this case the joint Hindu family ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... flowed from or accompanied it; and if the statute says that you must imagine a certain state of affairs, it cannot be interpreted to mean that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs.' In order to ascertain the share of heirs in the property of a deceased coparcener it is necessary in the very nature of things, and as the very first step, to ascertain the share of the deceased in the coparcenary property. For, by doing that alone can one determine the extent of the claimant's share. Explanation 1 to section 6 resorts to the simple expedient, undoubtedly fictional, that the interest of a Hindu Mitakshara coparcener "shall be deemed to be" the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ething that cannot be recalled just as a share allotted to a coparcener in an actual partition cannot generally be recalled. The inevitable corollary of this position is that the heir will get his or her share in the interest which the deceased had in the coparcenary property at the time of his death, in addition to the share which he or she received or must be deemed to have received in the notional partition." The above case is the sheet anchor of the assessee's contention, as noticed by the Tribunal. On a close reading of the aforesaid case law, we find that in para. 11 of the report in Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum [1981] 129 ITR 440 (SC); AIR 1978 SC 1239, the Supreme Court clarified the matter by making explic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion that when a female member who inherits an interest in the joint family property under section 6 of the Hindu Succession Act files a suit for partition expressing her willingness to go out of the family, she would be entitled to get both the interest she has inherited and the share which would have been notionally allotted to her as stated in Explanation 1 to section 6 of the Hindu Succession Act. But it has been observed by the apex court itself "It cannot be an authority for the proposition that she ceases to be a member of the family on the death of a male member of the family whose interest in the family property devolves on her without her volition to separate herself from the family". Further it has been held that the ownership of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the death of the karta a partition takes place or there is disruption of the Hindu undivided family. In that case the High Court was concerned with the interpretation of section 8 of the Hindu Succession Act. Section 8 of the Hindu Succession Act deals with the succession of self-acquired property. Section 6 of the Hindu Succession Act deals with the case of determination of the share of a male Hindu when he dies. Under the Hindu law self-acquired property and joint Hindu family property are not treated on par. Therefore, the reliance placed upon the judgment of Late Girdhari Lal [2004] 269 ITR 50 (All) is misplaced one. We find that another Division Bench of this court in the case of CED v. Smt. S. Harish Chandra [1987] 167 ITR 230 has he ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
