TMI Blog1936 (11) TMI 26X X X X Extracts X X X X X X X X Extracts X X X X ..... er 1930. Its business was that of dealers in Indian tobacco and cigarettes. The assessment to income-tax of the registered firm has been made in due course, and the present controversy is whether six of the partners should each be assessed to super-tax upon his share of the profits as an individual, or whether these six shares should each be assessed as income of a Hindu undivided family. The rates of super-tax imposed by the relevant Finance Act are less in the case of a Hindu undivided family than in the case of an individual. The problem has to be answered by applying to the facts of each case the language of S. 55 of the Act: In addition to the income-tax charged for any year there shall be charged, levied and paid for that year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dhaviji (son) daughter. By first wife By second wife Kanji, wife, daughter. Sewdas, wife Mohan Das. II VITHALDAS Kalyanji (wife 3 sons, daughter). Chaturbhuj (wife, daughters). Champsi The history of the firm according to the Commissioner is that in or about 1912 the business was begun by Moolji and Purshottam (brothers who had separated) and Kalyanji (who is not related to either), and that in no case were ancestral funds employed for the purpose. That in 1919 Moolji made gifts of capital to each of his son ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the affirmative and the second question in the negative. The interest of Chaturbhuj in the firm was obtained from his brother Kalyanji. It is self-acquired and not ancestral property. Chaturbhuj has no son, but even if he had, the son would have taken by birth no interest in the income now in question. The High Court might well have answered the second question in the negative and said of the first question that it did not arise. In none of the four cases above-mentioned, viz., those of Moolji, Purshottam, Kalyanji and Chaturbhuj does the fact that the man has a wife and daughter (or more than one) affect the result. The existence of a son does not make his father's selfacquired property family property or joint property. That the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lf-acquired property. The cases of Kanji and of Sewdas can be disposed of by answering the second question in the negative. The High Court approached the cases by considering first whether the assessee's family was a Hindu undivided family, and in the end left unanswered the question whether the income under assessment was the income of that family. This is due no doubt to the way in which the Commissioner had stated the questions. But, after all if the relevant Hindu law had been that the income belonged, not to the assessee himself but to the assessee, his wife and daughter jointly, it is difficult to see how that association of individuals could have been refused the description Hindu joint family . The phrase Hindu undivided fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as family property; but it does not follow that in the eye of the Hindu law it belongs save in certain circumstances, to the family as distinct form the individual. By reason of its origin a man's property may be liable to be divested wholly or in part on the happening of a particular event, or may be answerable for particular obligations, or may pass at his death in a particular way ; but if, in spite of all such facts, his personal law regards him as the owner, the property as his property and the income therefrom as his income, it is chargeable to income-tax as his, i.e., as the income of an individual. In their Lordships' view it would not be in consonance with ordinary notions or with a correct interpretation of the law of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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