TMI Blog1976 (12) TMI 30X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent No. 1) on March 19, 1964, as karta, had filed a petition before the Income-tax Officer (respondent No. 12) informing him that there had been a partial partition in the joint family of business and properties on June 30, 1959, and offering to pay half of the tax amounting to Rs. 4,503 and throwing the liability for the balance on his brother, Bansidhar. Upon filing of the said application, a proceeding under section 25A of the Indian Income-tax Act, 1922 (hereinafter called the old Act), was initiated by the Income-tax Officer. The partition was claimed on the basis of a Chitha dated July 1, 1959, drawn on a plain paper. The petitioner's father, Bhansidhar, however, contested the claim of partition of his elder brother, Rameshwarlal. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessment proceeding for the period 1970-71 was going on, Rameshwarlal filed another petition on September 7, 1972, before the Income-tax Officer (respondent No. 12) stating that there had been a total partition of his undivided Hindu family properties among the two branches of the two brothers aforesaid, namely, Rameshwarlal and his brother, Bansidhar, on the basis of the said Chitha dated July 1, 1959, on and from June 30, 1959. The Income-tax Officer started an enquiry under section 171 of the Income-tax Act, 1961 (hereinafter referred to as the new Act), a provision analogus to section 25A of the old Act. He issued letters to both the brothers and examined them on solemn affirmation and on consideration of the materials that were pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment years 1961-62, when the claim for partition of the Hindu undivided family was first made, all the petitioners were never given any notice, rather notices were always issued only to the two brothers representing the two branches of their smaller Hindu undivided family (wrongly stated in the counter-affidavit as bigger Hindu undivided family). He has also reiterated the statement made by the contesting respondents that full opportunity was given to the two brothers and a proper inquiry was conducted in the matter. It is not necessary to state the other facts brought on the record of this case for the view we are proposing to take in the matter. We have heard learned counsel for the parties at great length and we feel satisfied on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Income-tax Officer and inasmuch as the petitioners were not assessees, nor their father, their appeal was precarious. We have given our thought to this aspect of the matter. No authority was, however, cited at the Bar as to whether the petitioners, or for that matter their father, had any right of appeal under section 246 of the Act, being a person aggrieved. In view of the fact that section 171(2) of the Act contemplates an order to be passed after holding an enquiry and giving notice to the members of the family, a view is not impossible to be taken that the law contemplated giving of the notice of the inquiry to the members of the family. Then such members may either oppose the claim of partition or may Support it, and if the order go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding this finding, it would not be possible for the Income-tax Officer, who is still to consider the proceeding for the assessment year 1961-62, to take a different view, as the date of partition happens to be the same date which has been claimed in the said assessment proceeding. The result of this order, therefore, is that the a ssessment order that has yet to be passed in the earlier proceeding for the year 1961-62 would be practically a mechanical one. We have seen that the proceeding travelled up to this court and various directions and observations were given to the Income-tax Officer. A grievance has been rightly made by the learned counsel for the petitioners that without completing the said proceeding the Income-tax Officer by pass ..... X X X X Extracts X X X X X X X X Extracts X X X X
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