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TMI Blog1964 (11) TMI 6X X X X Extracts X X X X X X X X Extracts X X X X ..... cember, 1952 ? 2. If the answer to the first question is in the affirmative, whether the deed, Annexure " B " aforesaid, amounted to a transfer of assets to the three minor children aforesaid so as to attract the provisions of section 16(3) (a)(iv) of the Income-tax Act ? 3. If the answer to the first question is in the negative, the Income-tax Officer having rejected the claim of partition under section 25A and the assessee not having independently appealed against such decision, whether the assessee is entitled in law to any modification of the assessment other than the status alone ? " Question No. 1 was answered by the High Court in favour of the revenue ; question No. 2 against the revenue, and question No. 3 in favour of the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee executed a deed of partition and on its basis claimed before the Income-tax Officer, in the course of assessment proceedings for the assessment year 1953-54 (accounting year ending March 31, 1953), that an order under section 25A be passed an separate assessments made on each of the members of the erstwhile family as from December 19, 1952. The Income-tax Officer held that " the mere existence of any ancestral property, however small, would not render all self-acquired property part and parcel of the joint family assets by the mere fact that the incomes are not separately accounted for. " He held that there was no partition but simply a case of donation made by the assessee of his own self-acquired property and section 16(3)(a)(iv) wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deed came within the ambit of section 16. As stated above, the Appellate Tribunal referred three questions to the High Court. The High Court answered the questions in the manner mentioned above. Mr. Rajagopala sastri, the learned counsel for the revenue, has urged the following points : (1) That question No. 2 did not arise out of the order of the Appellate Tribunal and the High Court should have refused to answer the question. (2) That before the partition there was no antecedent blending of self-acquired properties with ancestral property. (3) That the partition deed effects a direct transfer of assets to the minor children within section 16(3)(a)(iv). The first point was not raised before the High Court, or in the statement of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs to deal with them in any manner he liked. " Mr. Sastri contends that as the recital in the first clause reproduced above has been found to be false, there is no antecedent blending of the self-acquired property with ancestral property before it is partitioned am the parties. He says that all the clauses took effect on the signature of the deed, and no moment of time elapsed between the alleged blending and partition. We are unable to accede to this contention. In the first clause above, it is recited that the assessee has been blending his money with inherited assets till this date. In other words, it asserts a continuous course of conduct ending with the day when the deed was executed. The deed seems to be carefully drafted and the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in issue. The result was that at least on 19th December, 1952 antecedent to the partition, the properties became impressed with the character of joint family property. There was a partition on 19th December, 1952. Thereafter, the properties allotted to the shares of the assessee and his divided sons were held by them in severalty." We have just pronounced judgment in Commissioner of Income-tax v. Keshavlal Lallubhai, and following that judgment we hold that there is no force in the third point raised by Mt. Sastri. Agreeing with the High Court, we hold that there was no direct or indirect transfer of assets to the minor children by the assessee within section 16(3)(a)(iv). The appeal, accordingly fails and is dismissed with costs. A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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