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TMI Blog1999 (12) TMI 7X X X X Extracts X X X X X X X X Extracts X X X X ..... se, the Tribunal was legally correct in holding that the order of the Commissioner of Income-tax under section 263 was bad in law and was without jurisdiction, as no notices were served on the other members of the family? 2. Whether, on the facts and in the circumstances of the case, the Tribunal was legally correct in holding that the partial partition between the two groups effected on January 1, 1971, was valid under the Hindu law?" We have heard Sri Shambhoo Chopra, learned counsel for the Commissioner, and Sri Neeraj Agarwal, learned counsel for the assessee-respondent. We may mention that similar questions were referred to this court for the assessment years 1973-74 and 1974-75 in ITR No. 303 of 1980 which has been decided by this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and to be continued in standing in the name his name in the firm, Sharvan Cold Stor- of Lala Brahma age and General Mills Swarup. ------------------------------------------------------------------------------------------------- Lala Brahma 1/2 of 6/48 share in profits or 8/48 in loss Rs.12,500 (twelve Swarup and standing in the name of Sri Brahma thousand five hun Govind Swarup Swarup and 1/2 of the reserves pertaining dred only). in one group to the said Lala Brahma Swarup. 1. (Sd. L. Brahma Swarup and Govind Swarup) 2. (Sd. Smt. Ved Vati Swarup and Sharvan Kumar Swarup). Group No. 2 Smt. Ved Vati 1/2 of 6/48 share in profits and 8/48 in loss Rs.12,500 (twelve Swarup and Sri standing in the name of Shri Brahma thousa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion by this court in CIT v. Sharwan Kumar Swarup and Sons [1998] 232 ITR 123, in which a similar partition in which the members took certain shares in groups was held to be valid. The court held that a partition can be partial qua the properties as well as qua the persons and that when a property is held by two groups and if the share of each group is well defined, the requirement of partial partition will stand fulfilled. It was this judgment that was the basis of the aforesaid decision dated December 1, 1999 in ITR No. 303 of 1980. Sri Shambhoo Chopra, learned counsel for the Commissioner, however, placed reliance on a judgment of the Supreme Court in Tatavarthi Rajah v. CWT [1997] 225 ITR 561, in which it was held that for the purpose o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Income-tax Act. In that case also there was only an ascertainment of share of the various persons in certain properties and it was admitted by the assessee that they have not divided the joint properties by metes and bounds. Therefore, this judgment of the Supreme Court is also not apposite to the facts and circumstances of the present case. Clause (b) of the Explanation to section 171 of the Income-tax Act defines partial partition" to mean a partition which is partial as regards the persons constituting the Hindu undivided family, or the properties belonging to the Hindu undivided family, or both. Thus, the Income-tax Act recognises a partial partition which may be partial in so far as the persons separating are concerned, it ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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