TMI Blog1965 (11) TMI 39X X X X Extracts X X X X X X X X Extracts X X X X ..... JUDGMENT The judgment of the court was delivered by SIKRI J.----This appeal in pursuance of a certificate granted under section 66A(2) of the Indian Income-tax Act, 1922, hereinafter referred to as the Act, is directed against the judgment of the High Court of Assam in a reference made to it under section 66(2) of the Act. The question referred by the Appellate Tribunal was: " Whether, in the circumstances of the case, the Tribunal was justified in assessing the income of the minors in the hands of the guardians as the income of a Hindu undivided family." The relevant facts out of which the reference arose are as follows: Shri Kishanlal Agarwalla died intestate in December, 1950, leaving his widow and two minors, Basanta and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g order: "Accounts up to 30th September, 1957, filed. The guardians file petition seeking permission for showing the accounts of the two minors separately. Heard learned lawyer. The guardians are hereby allowed to keep and submit separate accounts henceforward for each of the minors together with accounts of profit and loss and separate expenses of each minor." It seems to have been assumed that this order was also operative during the accounting year 1953-54, but it is clear that this order has no application to this accounting year. The Income-tax Officer, by his order dated October 19, 1957, assessed the guardians under section 23(3) read with section 41 of the Act. The guardians filed an appeal before the Appellate Assistant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the assessee must be described as Hindu undivided family. The Appellate Tribunal held that the status of the two minors is only that of Hindu undivided family, as it existed before the curatorship proceedings, and must continue to be so till at least such time that the elder minor attains majority. The guardians put in an application dated December 8, 1958, before the Appellate Tribunal under section 35 complaining that the contention of the guardians that under the Hindu law, by which the minors are governed, their shares are specific and determinate and they can only be assessed under section 41 in the manner and to the extent the assessment can be made on each of the two minor children individually on whose behalf such income was re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appears on behalf of the revenue contends that under section 40 the guardians were liable to pay tax in like manner and to the same amount as it would be leviable upon and recoverable from the minors if of full age. He says that if the minors had been of full age, they would have been assessed as a Hindu undivided family. Mr. Sastri, the learned counsel for the respondents, contends that the minors would not have been assessed as a Hindu undivided family but would have been assessed individually on their separate incomes. He says that under section 7 of the Guardians and Wards Act, no guardian could have been appointed in respect of the undivided interest of a minor and, therefore, the court must have proceeded on the basis that the proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usiness was joint family property. Till some positive action was taken to have a partition of the property, it would remain joint family property. We cannot read the order dated December 15, 1953, of the Sub-Judge, Nowgong, as having effected partition of the property. Apart from the fact that the court under the Guardianship Act has no jurisdiction to partition property belonging to a joint Hindu family, there are no words in the order to warrant such a finding. Reference was made to Saifudin Alimohamed v. Commissioner of Income-tax and Commissioner of Income-tax v. Balwantrai Jethalal Vaidya. We agree with the view expressed by Chagla C.J. in the latter case in which he explained certain observations made in the former case. If a guard ..... X X X X Extracts X X X X X X X X Extracts X X X X
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