TMI Blog1932 (11) TMI 12X X X X Extracts X X X X X X X X Extracts X X X X ..... these :-Diwan Bahadur Kishen Kishore is a Rais of Lahore. He has a brother Diwan Jai Gopal and has also sons. The brother is living separately from Diwan Bahadur .Kishen Kishore and is paid a yearly allowance of ₹ 7,200 and is also given some buildings for his residence. Diwan Raj Kumar, the father of these two gentlemen having died, there was a dispute between them about the succession to the estate and Mr. Atkins, who was Deputy Commissioner of Ferozepore, at the time, was appointed an arbitrator. He gave his award in which it was held that the family was governed by the rule of primogeniture and all that the younger sons could demand was : (1) their allowances and their houses for residence : or (2) a lump sum of money and a final severance from the estate . Diwan Raj Kumar, it appears, had made a will before his death, and after considering the custom of the family and the terms of the will Mr. Atkins decided that Diwan Jai Gopal should have ₹ 120 per month as his allowance and should also be given separate residence out of the family estate. This allowance was subsequently increased to ₹ 200 per month and finally to ₹ 7,200 a year. For the year 192 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me, profits or gains, or, in the case of a company, on the principal officer thereof, a notice containing all or any of the requirements which may be included in a notice under sub-s. (2) of s. 22, and may proceed to assess or re-assess such income, profits or gains, and the provisions of this Act shall, so far as may be, apply accordingly as if the notice were a notice issued under that sub-section: Provided that the tax shall be charged at the rate at which it would have been charged had the income, profits or gains not escaped assessment or full assessment, as the case may be It would be observed that an action under s. 34 can be taken at any time within one year of the end of the year for which the assessment is sought to be made. The assessment in this case was sought to be made for the year 1929-30 and notice was served on the 16th of March, 1931. If s. 34, therefore, is applicable to the case, then the notice must be deemed to have been validly served upon the assessee and the assessment is consequently legal. It is, however, contended on behalf of the assessee that having regard to what has been stated above, his income cannot be said to have escaped assessment as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essed to this income as Counsel on both sides stated before us. If the estate had been partible Diwan Jai Gopal would have been entitled to separate his share and to collect its income directly. Obviously in such a case both the brothers would have been separately assessed. In view, however, of the rule of primogeniture and the consequent impartibility of the estate, all that Diwan Jai Gopal has been given in lieu of his share in a separate allowance. That allowance, in my opinion, cannot form part of the income of the family or of. Diwan Bahadur Kishen Kishore. Some cases which were cited before us and in which it has been laid down that an allowance given by the head of the Hindu coparcenary to its members by way of maintenance is liable to be assessed as the income of the coparcenary, have no application to the facts of this case. I have already stated that the two modes of separation of the interest of the younger son in this family, as stated by Mr. Atkins, are the payment of an allowance and assignment of residence or the award of a lump sum and final severance from the estate. A complete separation between the members of the Hindu coparcenary is only possible at the time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndu family consisting of the father and the sons because the partibility of the joint estate is an essential feature of the joint Hindu family. Now it is undeniable that the Hindus in this province are governed by the Mitakshara Law and that according to that law when the father and the sons constitute a joint Hindu family the sons can ordinarily claim partition of the coparcenary property in the life-time of their father even against his will. In Hart Kishen v. Chandu Lal 43 IC 667, however, a Full Bench of the Chief Court, Punjab, has held that though under the Mitakshara system of Hindu Law a son can enforce partition even during his father's life-time, in the Punjab this form of Hindu Law is not in force. This judgment appears to be a complete answer to the only ground on which Counsel for the Income-tax Commissioner contended that the assessee cannot be deemed to be member of a joint Hindu family with his sons and, therefore, the father and the sons cannot constitute an undivided Hindu family; the learned Counsel was accordingly forced to take refuge in the assertion that Hari Kishen v. Chandu Lal (43 I.C. 667) lays down bad law. Being a judgment of the Full Bench, howe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort his contention and specially the remark that in an impartible zamindari there is no co-parcenary. This judgment was, however, noticed by their Lordships in Baijnath Prasad Singhs case (supra) and, it was observed that- the dictum that custom when it is found to exist supersedes the general law, which, however still regulates all beyond the custom is the key-note of the position. The question of how to select the head of the family in a joint family is part of the general law. That the custom of impartibility does not touch it is shown by the long list of authorities above cited, and there is in their Lordships' view no necessary logical deduction from the decisions in the Sartaj Kuari and the second Pittapur cases which forces them to an opposite conclusion . In an earlier part of their judgment in the same case their Lordships considered that certain remarks relied upon by Counsel for the Commissioner before us and made in the second Pittapur case must be treated as obiter dicta. Protab Chandra Deo v. Jagadish Chandra Deo [102 I.C. 599] was also cited on behalf of the learned Commissioner. The decision in that case, however, goes against his contention. It was as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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