TMI Blog1975 (10) TMI 12X X X X Extracts X X X X X X X X Extracts X X X X ..... he quantum assessments for the assessment years 1961-62 and 1962-63, respectively. S.J.C. No. 128 of 1972 arises out of a claim of partition made under section 25A of the Income-tax Act of 1922 for the assessment year 1961-62, which has been rejected. S.J.C. No. 131 of 1972 is in relation to the claim of registration under section 25A of the Income-tax Act of 1922 for the assessment year 1961-62. S.J.Cs. Nos. 133 and 233 of 1972 relate to refusal of registration under section 185 of the Income-tax Act of 1961 for the assessment years 1962-63 and 1963-64. In order to appreciate the respective contentions of the parties, the facts may be shortly stated. The genealogy appended below shows the relationship of the assessee with members of his family-- Badrinarayan Choudhury Birmadutt Shewachandrai Banarasilal Subhkaran Sawarmull Biswanath Kisharilal Anand Kumar Surendra This larger Hindu undivided family was resident at Kustia now in Bangladesh. Around 1946, soon before partition of India, Banarasilal with his children and Badrinarayan (father) migrated to India and in due course got rehabilitated at Berhampur in the District of Ganjam. There Banarasilal started some b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st appellate authority and restored those made by the Income-tax Officer in the various proceedings. The Tribunal held: "...The assessee claimed that there was a division of the family at Kustia, now in Pakistan, and stated that since there was a valid and lawful partition in the family, the question of B. N. Choudhury joining in the partition of the Hindu undivided family represented by Sri B.L. Choudhury did not survive. The Income-tax Officer negatived the contention of the assessee as he opined that no valid partition took place in the family. Against this, the assessee moved to the Appellate Assistant Commissioner challenging the order of the Income-tax Officer refusing to recognise the partition in the family. The Appellate Assistant Commissioner on the basis of an alleged draft of the partition deed and examination of one Sri S. K. Choudhury (who was examined by the Appellate Assistant Commissioner) held that the valid partition has been effected in the family. He also recorded a finding of fact that determination of the status as Hindu undivided family of the firm was under the mistaken impression and the assessee cannot be estopped to agitate the correct status in the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made a pointer of non-production of late B. N. Choudhury for his examination. The Appellate Assistant Commissioner held as a fact that at the time of request of the Income-tax Officer, Shri B. N. Choudhury died and, therefore, could not be produced. It was the submission of the assessee before the Appellate Assistant Commissioner that application for recognising the partition in the family was made some time in 1961 and the examination was started from August 29, 1961; the Income-tax Officer if so desired could have issued notice on B.N. Choudhury who was alive at that period of time. Sri Badrinarayan died on March 7, 1965, and since the Income-tax Officer did not have any intention of examining Badrinarayan after the death, non-production of Badrinarayan which was impossible could not be highlighted for the negation of the claim of partition........" After indicating the contentions of both sides at considerable length, the Appellate Tribunal concluded by saying: "We have heard both the parties on the point and are of the view that the depositions of late Badrinarayan of his right in the Hindu undivided family has not been brought on record. It is also clear to find that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . He does not exceed his jurisdiction if he asks or allows the assessee to produce or file additional papers or additional evidence in the matter he thinks fit. This view has been accepted by the Supreme Court in the case of Keshav Mills Co. Ltd. v. Commissioner of Income-tax . Interpreting similar provisions in the Orissa Sales Tax Act, this court in the case of Babulal Chappolia v. State of Orissa came to the same conclusion and the decision of this court has been affirmed by the Supreme Court in State of Orissa v. Babu Lal Chappolia. Therefore, no objection was available on the ground that the Appellate Assistant Commissioner had received new materials. In fact, receiving new material by the Appellate Assistant Commissioner cannot be equated with receipt of additional evidence as contemplated in Order 41, rule 27 of the Code of Civil Procedure or even at the stage of second appeal by the Tribunal. Large discretion has been vested in the first appellate authority and if he received evidence which had not been placed before the Income-tax Officer, it is not for the Tribunal to question its receipt. Obviously, the Tribunal equated the stage of the first appellate authority with its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned by the Tribunal. Our answer to the first question is-- In the facts and the circumstances of the case, the Appellate Tribunal has not come to the correct conclusion that there is no valid partition in the family of the assessee. It must be made clear that we do not finally decide the question and when the matter goes before the Tribunal with our opinion, the Tribunal must hear the matter again keeping the law as indicated by us in view and deal with the claim in accordance with law. It is conceded before us that the claim regarding the status of the assessee as also registration of the firm are dependent upon the acceptance of the claim of partition. If the assessee fails to establish his claim of partition as alleged, the claim of status as also registration of the firm would stand rejected. In case the claim of partition is accepted, these two questions have to be independently examined on their own merits. In the circumstances of the case, therefore, these two questions cannot be answered at this stage. If the Tribunal is satisfied that the assessee has succeeded to establish his claim of partition, these two questions have to be examined on the basis of the materia ..... 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