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TMI Blog1964 (11) TMI 12X X X X Extracts X X X X X X X X Extracts X X X X ..... 47 were pending at the time when the Hindu undivided family was disrupted. On May 20, 1946, Venkatanarsu claimed before the Additional Income-tax Officer, Cuddapah, that the property of the Hindu undivided family had been partitioned among the members in definite portions. For reasons which do not appear from the record, this claim was not disposed of till June 30, 1952. In the meanwhile, assessments for the five years in question were made by the Income-tax Officer on diverse dates between September 30, 1948, and November 30, 1950, resulting in a tax liability of Rs. 65,750 in the aggregate for the five years. Appeals preferred against the orders of assessment to the Appellate Assistant Commissioner and the Income-tax Appellate Tribunal proved unsuccessful. It is common ground that it was not contended in the appeals that in making the orders of assessment, without disposing of the claim that the family was disrupted in 1946, the Income-tax Officer had acted illegally. On June 30, 1952, the Income-tax Officer, Special Circle, Madras, made an order under section 25A recording that the property of the Hindu undivided family of Krishnappa and his sons was partitioned on November 2, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ), which provided that tax shall not be payable by an assessee in respect of any sum which he received as a member of a Hindu undivided family. Income received by a Hindu undivided family could not therefore be assessed and collected from the members of the family, if at the time of making the assessment the family was divided. To rectify what was obviously a lacuna, the legislature incorporated section 25A for assessment and enforcement of liability to tax income received by a Hindu undivided family, which was no longer in existence at the date of assessment. But the new section went very much beyond rectifying the defect in the statute which necessitated the amendment. Section 25A incorporated by the Indian Income-tax (Amendment) Act (3 of 1928), at the material time read as follows : " (1) Where, at the time of making an assessment under section 23, it is claimed by or on behalf of any member of a Hindu family hitherto assessed as undivided that a partition has taken place among the members of such family, the Income-tax Officer shall make such inquiry thereinto as he may think fit, and, if he is satisfied that the joint family property has been partitioned among the various m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he is satisfied that the partition had taken place, he shall record an order to that effect. Where an order has been passed, the Income-tax Officer must still make an assessment of the total income received by or on behalf of the undivided family as if no partition had taken place, and shall thereafter apportion the income-tax assessed on the total income received by the family and assess each member or group of members in accordance with the provisions of section 23 by adding to the income-tax for which such member or group of members may be separately liable, tax proportionate to the portion of the undivided family property allotted to him or to the group. This apportionment and fresh assessment operate notwithstanding anything contained in sub-section (1) of section 14. The proviso to sub-section (2) makes a departure of a vital character. Whereas in the case of an assessment of the income of the joint family, the tax liability is charged,upon the assets of the family, when upon a partition an order under sub-section (1) has been recorded, all members and groups of members are expressly declared by the proviso to be jointly and severally liable for the tax assessed on the total ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he jurisdiction of the Income-tax Officer to make an assessment of the Hindu family which had hitherto been assessed as undivided. The Income-tax Officer may assess the income of the Hindu family hitherto assessed as undivided notwithstanding partition, if no claim in that behalf has been made to him or if he is not satisfied about the truth of the claim that the joint family property has been partitioned in definite portions, or if on account of some error or inadvertence he fails to dispose of the claim. In all these cases his jurisdiction to assess the income of the family hitherto assessed as undivided remains unaffected, for the procedure for making assessment of tax is statutory. Any error or irregularity in the assessment may be rectified in the manner provided by the statute alone, and the assessment is not liable to be challenged collaterally. In the present case, claim was undoubtedly made at the time of making an assessment, that the property of the family was partitioned. The claim was not disposed of before making the assessment, and the Income-tax Officer proceeded to assess the income of the family as if the property of the family had not been partitioned. It is tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovision imposing joint and several liability for tax assessed on the total income received by or on behalf of the joint family against all members of the family. The contention is that by the proviso the legislature intended that in respect of the income of a Hindu undivided family, once partition is effected, whether the partition is recorded or not under sub-section (1), all members of the family will be jointly and severally liable for the tax assessed on the total income received by or on behalf of the family. But howsoever read, the proviso yields no such meaning. The scheme of the section is that so long as there is an assessment of the Hindu undivided family, the liability for payment of the tax is on the property of the family and not personally on the members. Where an order that the property of the family has been partitioned is recorded, the liability of the members has to be apportioned in the manner set out in the sub-section, but one of the incidents of assessment after apportionment of tax liability is that the members of the family stand jointly and severally liable for the entire amount of tax assessed against the family. In the present case no orders were recor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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