TMI Blog2005 (3) TMI 105X X X X Extracts X X X X X X X X Extracts X X X X ..... udgment of the court was delivered by Prakash Krishna J.— The Income-tax Appellate Tribunal, New Delhi, has referred the following two questions of law under section 256(1) of the Income-tax Act, 1961 (hereinafter referred to as "the Act"), for the opinion to this court : "(1) Whether sub-section (9) of section 171 of the Income-tax Act applied to the facts of the present case ? (2) Whether the Tribunal was justified in holding that the aforesaid section will not apply because assessments were made after December 31, 1978 ?" 2. Briefly stated the facts giving rise to the present case are as follows : The reference relates to the assessment years 1981-82 and 1982-83. The respondent-assessee, a joint Hindu family consisting of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . But, as a matter of fact, the income of the HUF was assessed. He was of the view that it was a case of mistake on the part of the assessing authority and, as such, no advantage can be derived out from this mistake by the assessee. The Tribunal in a second appeal allowed the claim of partial partition as set up by the assessee on the ground that the conditions of section 171(9) of the Act having not been fulfilled, the Income-tax Officer cannot refuse the claim of partial partition. It took the view that no assessment was made in the status of the HUF the assessee is out of the reach of section 171(9) of the Act. Further, it took a view that the word "assessed" used in section 171(9) of the Act means passing of the assessment order prior t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Not agreeing with this view, the Tribunal took a view that the actual assessment order should have been passed before the date of partial partition otherwise of sub-section (9) of section 171 would not be attracted. 7. From the statement of the case, it is clear that the assessments for earlier assessment years were made for the assessment years 1978-79 and 1979-80 in the status of the HUF. But these assessments were completed in October, 1982, i.e., much later from the date of partial partition. The date of partial partition is October 20, 1979. The Tribunal has accepted, as a fact, that no assessment has been made on the joint family as such prior to December 31, 1978. 8. We have given a thoughtful consideration to the reasoning ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment order passed is relatable to the assessment year involved therein and it will be treated to have been passed on the last date of assessment year, for the purposes of section 171 of the Act. The Tribunal was not correct to hold that although assessments for the assessment years 1978-79 and 1979-80 were made in the status of HUF will not be treated as hitherto assessed as undivided as assessments were completed in October, 1982, i.e., after the date of partial partition (October 20, 1979). The view of the Tribunal does not fit with the scheme of section 171 of the Act. The scheme, as pointed out appears to be continuance of the status of Hindu undivided family, once assessed for subsequent years except where a finding of the partition ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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