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TMI Blog1966 (1) TMI 22X X X X Extracts X X X X X X X X Extracts X X X X ..... ndivided family ". The Income-tax Appellate Tribunal confirmed the order of the Appellate Assistant Commissioner. The Tribunal then referred the following questions of law to the High Court of Mysore for opinion under section 66(1) of the Indian Income-tax Act : "(i) Whether the sole male surviving coparcener of the Hindu joint family, his widowed mother and sisters constitute a Hindu undivided family within the meaning of the Income-tax Act ? (ii) Whether the assessment of the income in the hands of the Hindu undivided family was correct? (iii) Whether the Appellate Assistant Commissioner was entitled to correct the status ?" The High Court recorded answers in the affirmative on all the questions. With certificate granted by the High Court under section 66A of the Indian Income-tax Act, Buddanna has appealed to this court. Before the Appellate Assistant Commissioner it was contended by Buddanna that he could in law have only been assessed as an individual and that the Income-tax Officer was precluded by virtue of the proviso to section 26(2) to pass the order of assessment for the year 1951-52 against him. The Appellate Assistant Commissioner and the Appellate Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he statute with reference, not to one school only of Hindu law, but to all schools; and their Lordships think it a mistake in method to begin by pasting over the wider phrase of the Act the words 'Hindu coparcenary', all the more that it is not possible to say on the face of the Act that no female can be a member." The plea that there must be at least two male members to form a Hindu undivided family as a taxable entity also has no force. The expression "Hindu undivided family" in the Income-tax Act is used in the sense in which a Hindu joint family is understood under the personal law of Hindus. Under the Hindu system of law a joint family may consist of a single male member and widows of deceased male members, and apparently the Income-tax Act does not indicate that a Hindu undivided family as an assessable entity must consist of atleast two male members. Counsel for the appellant said that there are certain intrinsic indications in the annual Finance Acts, which support the contention that the income received or arising from property in the hands of a sole surviving male member in a joint Hindu family, even if there be females having a right to maintenance out of that prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndu undivided family must consist of more male members than one. The sub-section only prescribes the procedure whereby the members of a family which has hitherto been assessed in the status of a Hindu undivided family may obtain an order that they may, because of partition of the joint status, be assessed as separated members. The clause is purely procedural : it does not enact either expressly or by implication that a Hindu undivided family assessed as a unit must consist of at least two male members who are capable of demanding a partition. Counsel for the appellant placed strong reliance upon certain observations of the judicial Committee in the judgment in Kalyanji Vithaldas's case in which they disapproved of the view expressed by the Bombay High Court in Commissioner of Income-tax v. Gomedalli Laxminarayan. In the case decided by the Bombay High Court a joint family consisted of a father and a son and, their respective wives. The father died, and in the year of assessment the joint family consisted of the son, his mother and his wife. In dealing with the question referred by the Commissioner of Income-tax whether the income received by the son should be regarded as his indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erty and the income therefrom as his income, it is chargeable to income-tax as his, i.e., as the income of an individual. In their Lordships' view it would not be in consonance with ordinary notions or with a correct interpretation of the law of the Mitakshara, to hold that property which a man has obtained from his father belongs to a Hindu undivided family by reason of having a wife and daughters." The facts of the cases which were decided by the Judicial Committee need to be scrutinized carefully. Before the Judicial Committee there were six appeals by six partners of the firm Moolji Sicka: they were Moolji, Purshottam, Kalyanji, Chaturbhuj, Kanji and Sewdas. Moolji, Purshottam and Kalyanji had each a son or sons from whom he was not divided. But the income of the firm, which had to be assessed to super-tax was the separate income of each of these partners. Chaturbhuj had a wife and daughter but no son, and the income was his separate property. Kanji and Sewdas, sons of Moolji, were married men, but neither had a son: they received by gift from Moolji their respective interests in the firm, and for the purpose of the case it was assumed that the interest of each was ancestral ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y High Court "arrived too readily at the conclusion that the income was the income of the family". When Gomedalli Lakshminarayan's case was carried in appeal to the Judicial Committee, the Board regarded themselves as bound by the interpretation of the words "Hindu undivided family" employed in the Indian Income-tax Act in the case of Kalyanji Vithaldas and observed that since the facts of the case were not in any material respect different from the facts in the earlier case, the answer to the question referred should be that "the income received by right of survivorship by the sole surviving male member of a Hindu undivided family can be taxed in the hands of such male member as his own individual income for the purpose of assessment to super-tax under section 55 of the Indian Income-tax Act, 1922.: Commissioner of Income-tax v. A. P. Swamy Gomedalli. It may however be recalled that in Kalyanji Vithaldas's case income assessed to tax belonged separately to four out of six partners of the remaining two it was from an ancestral source, but the fact that each such partner had a wife or daughter did not make that income from an ancestral source income of the undivided family of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umes a different quality : it is such, too, that female members of the family (whose members may increase) have a right to maintenance out of it and in some circumstances to a charge for maintenance upon it. And these are incidents which arise, notwithstanding his so-called ownership, just because the property has been and has not ceased to be joint family property ... it would not appear reasonable to impart to the legislature the intention to discriminate, so long as the family itself subsists, between property in the hands of a single coparcener and that in the hands of two or more coparceners." Dealing with the question whether a single coparcener can alienate the property in a manner not open to one of several coparceners, they observed that it was : " ... an irrelevant consideration. Let it be assumed that his power of alienation is unassailable : that means no more than that he has in the circumstances the power to alienate joint family property. That is what it is until he alienates it, and, if he does not alienate it, that is what it remains. The fatal flaw in the argument of the appellant appeared to be that, having labelled the surviving coparcener 'owner,' he then a ..... 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