TMI Blog1994 (7) TMI 63X X X X Extracts X X X X X X X X Extracts X X X X ..... tituted the nucleus of this Hindu undivided family of which the petitioner became the karta. On October 16, 1964, this smaller Hindu undivided family became a partner in Messrs. Ram Deo Onkar Mal through the petitioner and the amount received in the partial partition held on October 15, 1964, was invested as the share of the smaller Hindu undivided family. The income so earned by the smaller Hindu undivided family was assessed through the petitioner as karta of this branch of a Hindu undivided family. On October 1, 1968, the smaller Hindu undivided family headed by the petitioner was subjected to a partition so that the amount of Rs. 88,353.78 standing to the credit of this smaller Hindu undivided family in the account books of Messrs. Ram Deo Onkar Mal was partitioned amongst the karta, his wife and sons after making a provision of Rs. 15,000, for the marriage expenses of the karta's daughter. This partition was evidenced by a memorandum of partition executed on October 5, 1968. This partition was recognised by the Income-tax Officer, Gonda, through an order dated November 27, 1971. For the assessment year 1970-71, the share income of the various members of the erstwhile family of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chand. It is stated that in statement, dated February 25, 1980, before the Income-tax Officer, Shri Gokul Chand admitted that he is a partner in the firm in a capacity as a karta of the family. The order under section 171 of the Act recognising the claim of partition as claimed to have been passed on insufficient facts and believing the case of the petitioner which was subsequently found to be wholly untrue. It is also claimed that the sons of Gokul Chand were minors at the relevant time and were incapable of giving consent to the partition and, therefore, Gokul Chand could not have legally effected the partition. It is alleged that the family of which Gokul Chand was the karta did not keep any books of account prior to October 1, 1968, and the books of account commenced on October 1, 1968, were intended to create evidence only for the alleged partition. It is alleged that the assessments were made under section 143(1) without any enquiry by the concerned Assessing Officer. In reply to paragraph 19 of the writ petition, in which the petitioner contended that the notice could have been issued to the Hindu undivided family headed by him and not to him in his individual capacity, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essed to " Sri Gokul Chand, C/o. Ram Deo Onkar Mal, Barragaon, Gonda ". This notice does not mention that it was being issued to Gokul Chand in his capacity as the karta of a Hindu undivided family. Gokul Chand was being assessed in his individual capacity from the year 1970-71 onwards. As is evident from the copy of the assessment order for the assessment year 1970-71 annexed at serial No. 5 to the writ petition, it was during the course of this assessment that the order recognising the partition was passed under section 171 of the Act on November 27, 1971. The Hindu undivided family that came into existence on the partition held on October 15, 1964, in the bigger Hindu undivided family, is not shown to have ever been assessed to tax. The assessment order (annexure "5" to the writ petition) and the order under section 171 (annexure "6" to the writ petition) mention the general index register number as G-707 which is G. I. R. number of Gokul Chand individual. The impugned notice (annexure "6" to the writ petition) as alleged by the petitioner and as admitted by the respondent, did not indicate anything about the cause of the issue of the notice and, according to the respondent, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he books of that firm. This fact is alleged to have since been brought to the notice of the Income-tax Officer concerned. This contention does not appear to be true. The order dated November 27, 1971, mentions the manner of partition stating that this has been effected by dividing the amount in the personal set of account books of the Hindu undivided family, meaning thereby that the Income-tax Officer knew that in the books of the firm the capital remained as it was or he could have with reasonable efforts found out the same. The order was passed in the assessment proceedings of Gokul Chand individual and the partition was recognised year after year till the impugned notice was issued. Sub-sections (2), (3) and (4) of section 171 of the Income-tax Act, 1961, read as under : " (2) Where, at the time of making an assessment under section 143 or section 144, it is claimed by or on behalf of any member of a Hindu family assessed as undivided that a partition, whether total or partial, has taken place among the members of such family, the Assessing Officer shall make an inquiry thereinto after giving notice of the inquiry to all the members of the family. (3) On the completion of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the present case, order dated November 27, 1971, has not been set aside and, therefore, as long as that order is effective, the Income-tax Officer cannot take any steps to assess the erstwhile Hindu undivided family by ignoring the said order. Learned counsel for the respondent referred to a statement made by Gokul Chand on February 25, 1980, before the Income-tax Officer from which it was inferred that the partition was a made up affair and in fact no such partition had taken place. The statement if read as a whole may not sustain such a conclusion but we need not express any opinion on this account because it is not necessary for us to do so. It was for the Assessing Officer to take steps to get the order under section 171 set aside, if the Assessing Officer felt that it was not a correct order. That has not been done. One of the reasons set up in the counter-affidavit for challenging the validity of the partition is that the sons of Gokul Chand were minors and, therefore, he could not effect a partition. This contention is no more tenable because the Supreme Court in Apoorva Shantilal Shah v. CIT [1983] 141 ITR 558 has upheld the authority of a father to effect even partia ..... 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