TMI Blog1935 (3) TMI 21X X X X Extracts X X X X X X X X Extracts X X X X ..... vidual income, or it should be taxed as the income of a Hindu undivided family, for the purposes of assessment to super-tax, under Section 55, Income Tax Act, 1922. The facts are that there was a joint Hindu family consisting of a father and his wife and a son and his wife, the son being the present assessee. The father died in 1929 before the year of assessment, so the joint Hindu family then consisted of the son, his mother and his wife and the question raised by the Commissioner appears to me to admit the existence of a joint Hindu family. Of such existence, I think there can be no question. It is clear law that you may have a joint Hindu family consisting of one male member and female members who are entitled to maintenance, althou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s it does will property, when it refers to a Hindu undivided family, really means to denote the coparceners, that is to say, male members of the family in whom the family property is vested. I see no ground for arriving at that conclusion, since the meaning of the two expressions was well-known when the Act was drafted, and the legislature has thought fit to use the wider expression rather than the narrower one. I have no doubt that this was deliberate. The more liberal allowance to a joint family in respect of super-tax was presumably given because the whole income of the family would not go to one individual. If there were a large number of male members, each member would get only a small portion of the income, and it would be hard to cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the first question submitted to us must be answered by saying that the income of the assessee should be taxed as the income of a Hindu undivided family for the purposes of super-tax under Section 55. The second question Whether, under the circumstances of the case, the assessment as levied in this case is in order must be answered in the negative. The Commissioner to pay the costs of the assessee to be taxed by the Taxing Master on the Original Side scale. RANGNEKAR, J. - The question raised on this reference is whether the assessee is liable to be taxed as an individual or a representative of an undivided Hindu family. The importance of the question lies in the fact that an undivided Hindu family is treated as a single unit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thers are only entitled to maintenance. Then dealing with what is called coparcenary, the learned author at p. 347 observes: Now it is at this point that we see one of the most important distinctions between the coparcenary and the general body....... I think perhaps a more accurate description of what a Hindu undivided family means is given by Sir Dinshah Mullah in his Principles of Hindu Law, Edn. 7, at p. 230, in these words: A joint Hindu family consists of all persons lineally descended from a common ancestor, and includes their wives and unmarried daughters. An undivided Hindu family in this sense differs from what is called a Hindu coparcenary, which is a much narrower body. A Hindu coparcenary includes only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... coparceners have also to come out of the property. I need not refer to the other restrictions on the power of the sole surviving coparcener. Therefore, because there is no coparcenary, it does not follow that there is no undivided Hindu family. The joint status of the family does not come to an end merely because for the time being there is only one member of the family who is in possession of the family property. It is clear therefore that there is a sharp distinction between what is understood in the Hindu law by the expressions undivided Hindu family and coparcenary. Now these two expressions which are known to every Hindu lawyer were before the legislature when the Income Tax Act came to be enacted. It is a canon of construction ..... X X X X Extracts X X X X X X X X Extracts X X X X
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