TMI Blog1966 (10) TMI 36X X X X Extracts X X X X X X X X Extracts X X X X ..... ee with the High Court of Punjab that section 34 of the Indian Income-tax Act confers no general power of reviewing an order passed under section 25A(1), which is in its very nature effective for all subsequent years. Appeal allowed. - C.A. 946 OF 1965 - - - Dated:- 14-10-1966 - Judge(s) : V. RAMASWAMY., J. C. SHAH., V. BHARGAVA JUDGMENT The judgment of the court was delivered by SHAH J.---Sir Chinubhai Madhavlal, Baronet, his wife, Lady Tanumati, and his three sons, Udayan, Kirtidev and Achyut, were originally assessed to income-tax in the status of a Hindu undivided family by the First Income-tax Officer, A-III Ward, Bombay. Sir Chinubhai filed Suit No. 2176 of 1948 in the High Court of judicature at Bombay for partition and separate possession of his share in the joint family estate. On March 8, 1950, the High Court of Bombay passed a decree by consent declaring that as from October 15, 1947, the joint family stood dissolved and that all the members of the family had become separate in food, worship and estate from that date and that each member of the family was entitled to a fifth share in the properties, movable and immovable, belonging to the family, subject to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led " the assessees " on the plea that the income of the family had escaped assessment. The assessees contended that they did not in the years of assessment referred to in the notice constitute a Hindu undivided family and the Income-tax Officer had no power, after the order passed on January 6, 1953, to assess them in the status of a Hindu undivided family. The Income-tax Officer rejected the contention. In appeal to the Appellate Assistant Commissioner, the order of assessment under section 34 was set aside. The Appellate Assistant Commissioner held that the decree passed by the High Court of Bombay brought about a complete disruption and severance of the joint status of the original family, and merely because the assessees after severance had lived and traded together, they could not be assessed as a Hindu undivided family. He also held that after an order under section 25A was passed by one Income-tax Officer, another Income-tax Officer had no power to modify it or to circumvent the same by seeking to assess the assessees as a Hindu undivided family. In appeal by the Income-tax Officer, Ahmedabad, the Appellate Tribunal restored the order passed by the Income-tax Officer. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... " will be meaningless in relation to a Hindu family governed by the Dayabhaga school of Hindu law. But an order recording partition can be made only if the properties of the joint family are partitioned in " definite portions ", that is, the properties are physically divided if they admit of such division, otherwise in such division as they admit of. In Gordhandas T. Mangaldas v. Commissioner of Income-tax, the High Court of Bombay held that section 25A contemplates a physical division of the joint family property : a mere division of interest in such property is not enough. Beaumont C. J., in delivering the judgment of the court, observed at page 195 : " I think that the expression ' definite portions ' indicates a physical division in which a member takes a particular house in which he can go and live, or a piece of land which he can cultivate, or which he can sell or mortgage, or takes particular ornaments which he can wear or dispose of, and that the expression ' definite portions ' is not appropriate to describe an undivided share in property where all a particular member can claim is a proportion of the income, and a division of the corpus, but where he cannot claim any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tinue to assess a Hindu undivided family which has been divided under the personal law so long as no order under section 25A(1) has been recorded. Once an order under section 25A(1) has been recorded, clause (3) of section 25A has no application. If the members of the family, who constituted a group between whom and the other group there has been a partition in definite portions, constitute a Hindu undivided family, that group may undoubtedly be assessed as a Hindu undivided family : they may be so assessed because of their relation inter se and not by virtue of section 25A(3). The order passed by the Income-tax Officer, Bombay, was apparently a valid order which he was competent to make. When as a result of that order, the property of the family was deemed for purposes of the Income-tax Act partitioned, it was not open to the Income-tax Officer, Ahmedabad, to ignore the order either for the year in which the partition of the joint family property was recorded, or for any subsequent year, and to assess the income in the hands of the assessees as if the original Hindu undivided family continued to exist. An order assessing the assessees as members of a Hindu undivided family coul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not ordinarily operate as res judicata in respect of the matter decided in any subsequent year, for the assessing officer is not a court and he is not precluded from arriving at a conclusion inconsistent with his conclusion in another year. It is open to the Income-tax Officer, therefore, to depart from his decision in subsequent years, since the assessment is final and conclusive between the parties only in relation to the assessment or the particular year for which it is made. A decision reached in one year would be a cogent factor in the determination of a similar question in a following year, but ordinarily there is no bar against the investigation by the Income-tax Officer of the same facts on which a decision in respect of an earlier year was arrived at. But this rule, in our judgment, does not apply in dealing with an order under section 25A(1). Income from property of a Hindu undivided family, " hitherto " assessed as undivided, may be assessed separately if an order under section 25A(1) had been passed. When such an order is made, the family ceases to be assessed as a Hindu undivided family. Thereafter, that family cannot be assessed in the status of a Hindu undivided fam ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
