TMI Blog1991 (6) TMI 58X X X X Extracts X X X X X X X X Extracts X X X X ..... Ambalal, the karta, his wife and his two minor sons, Kamalesh and Pradeep. On the partial partition of the properties of the Hindu undivided family of Ambalal Shivlal, as aforesaid, the lands bearing Survey Nos. 296 and 386/2 of Vadaj became the properties of the Hindu undivided family of Kantilal Ambalal. A notification dated January 15, 1970, was issued by the State Government under section 4 of the Land Acquisition Act for the acquisition of the aforesaid lands bearing Survey Nos. 296 and 386/2 of Vadaj for the Gujarat Housing Board. After the partial partition as aforesaid, the Hindu undivided family of Kantilal Ambalal entered into an agreement with the Gujarat Housing Board on May 5, 1970, for the transfer of the lands bearing Surve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Income-tax Officer, therefore, issued a notice under section 148 read with section 147 (a) of the Act for making an assessment of the Hindu undivided family of Kantilal Ambalal. In response to this notice, the Hindu undivided family of Kantilal Ambalal filed a return of income on April 22, 1974, showing income of Rs. 98. It was pointed out to the Income-tax Officer that a partial partition had taken place on September 24, 1970, and, under this partial partition, 2,518 sq. yds. of land of Survey No. 296 and 3,034 sq. yds. of land of Survey No. 386/2 were divided amongst the members of the Hindu undivided family and it was only after such partial partition that the land was transferred to the Gujarat Housing Board. The Income-tax Officer, how ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d became partner in this firm. Since, according to the Income-tax Officer, the partial partition was not valid, he held that the amount which Kantilal Ambalal had invested in the firm of M/s. Kirtikumar Trikamlal and Bros. was not his individual money, but money belonging to the Hindu undivided family and, therefore, the share of profit received from the said firm was assessable in the hands of the Hindu undivided family. In this view of the matter, he included the share income received by Kantilal Ambalal from the firm of M/s. Kirtikumar Trikamlal and Bros. in the hands of the Hindu undivided family of Kantilal Ambalal (the assessee). Being aggrieved by the assessment orders for the assessment years 1971-72 to 1975-76, the Hindu undivide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal the order passed by the Appellate Assistant Commissioner in the appeals against the assessments made by the Income-tax Officer. The Revenue filed cross-objections in regard to the determination of the value of the land as on January 1, 1964, in these appeals. The Tribunal disposed of the said appeals and the cross objections by a common order. The Tribunal, relying on its earlier order, held that, since the Hindu undivided family of Kantilal Ambalal was not previously assessed, section 171 has no application. According to the Tribunal, the partial partition was genuine. There was no material on record "to show that the partial partition was sham or an artifice pressed into service to defeat the legitimate claims of the Revenue". It wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers of the assessee-Hindu undivided family in respect of the lands of Survey Nos. 296 and 386/2 acquired by the State of Gujarat for Gujarat Housing Board was not assessable in the hands of the assessee-Hindu undivided family ? 4. Whether, on the facts and in the circumstances of the case, the share income received by Kantilal Ambalal from the partnership firm of M/s. Kirtikumar Trikamlal and Bros. was assessable in the hands of the assessee-Hindu undivided family ?" Section 171 (1) which is relevant for the purpose of resolving the controversy involved in this reference reads as follows : "A Hindu family hitherto assessed as undivided shall be deemed for the purposes of this Act to continue to be a Hindu undivided family, except wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication at all to the facts of the instant case. A similar view has been taken by the Andhra Pradesh High Court in Addl. CIT v. P. Durgamma [1987] 166 ITR 776. The genuineness of the partial partition has not been challenged on any ground other than the legal ground that it was not valid under section 171 of the Act. Partial partition which was made on September 24, 1970, must, therefore, be held to be valid. In our opinion, therefore, the Tribunal was right in holding that section 171 of the Act is not applicable and that the partial partition was valid. In the view which we are taking, capital gains were not assessable in the hands of the Hindu undivided family of Kantilal Ambalal. It follows as a necessary corollary that the income ear ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
