TMI Blog1982 (2) TMI 93X X X X Extracts X X X X X X X X Extracts X X X X ..... pur. Out of the total value of the 7 fixed deposit receipt amounting to Rs. 2,01,000 the value of one of the fixed deposits to the extent of Rs. 21,000 was set apart to provide for the marriage and other expenses of the minor daughter Km. Vinita Dixit. The rest of the deposits amounting to Rs. 1,80,000 were divided equally between the Karta, his wife and his minor son. The HUF consisted of Shri Kailash Kumar Dixit, the Karta, his wife Smt. Asha Dixit, his minor son Vinay Kumar Dixit and his minor daughter Km. Vinita Dixit. A deed dt. 30th June, 1976 of partial partition was also executed and which was submitted before the ITO. The ITO took the view that the partial partition claimed by the assessee was invalid because there were only two co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncome from the property which has ceased to be owned by the HUF consequent upon its partition. However, at the time of hearing this issue was not pressed before us and, therefore, it no longer survives for our consideration. In the appeal arising out of the assessment order passed by the ITO the assessee had taken ground No. 2 of appeal to the effect that s. 171 does not warrant the charge of tax on unreal income derived from property which, pursuant to the partial partition, ceased to be owned by the HUF. However. At the time of hearing this ground of appeal was also not pressed before us. Therefore, it no longer survives for our consideration. 5. Shri. K.K. Dixit, the Karta argued the appeals before us in person. He pointed out that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11th August 1981. 6. Shri Sheo Prasad, the ld. D.R. pointed out that no details of the partial partition were given by the assessee in its application dt. 31st July 1978. He also submitted that the deed of partial partition was a nullity as none had singed it on behalf of the minor. He also emphasised that the necessity for the partial partition and existence of a benefit to the minor had to be established. In this connection he referred to the decision of the Hon'ble Allahabad High Court in Pratap Chandra Ors. vs. ITO (1975) 100 ITR 551 (All) wherein it was held that the disruption of an HUF cannot be recognised in any proceedings under the IT Act so long as an order to that effect had not been passed. He also referred to the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tails of the partial partition were given in the application dt. 31st July 1978, is without force. The next objection raised on behalf of the revenue that none had signed on behalf of the minor in the deed of partial partition is also not tenable on facts. The concluding portion of the deed is in the following words: "In witness whereof and acceptance of various contents of this Deed (Party No.1) for himself and on behalf of Party No. 3 4 in capacity of their Natural Guardian and Party No. 2 for herself affix their signatures on 30th June 1976 here under in presence of following witnesses: Party No. 1 is Shri K.K. Dixit, the Karta, party No. 2 is his wife Smt. Asha Dixit, party No. 3 is his minor son and party No. 4 is his minor dau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sons later as part of his patria potestas without the consent of his son. In the present case the consent of the only minor son being there, the exercise of the patria potestas on the part of the father was unexceptionable. In the case of Govind Narain the Hon'ble High Court had clearly held that even if a share is allotted to a person who is not entitled to it on partition of an HUF, it cannot be a ground for holding the partition to be illegal or void that such a partition cannot be challenged by a stranger. The same view has been expressed in the case of Hoshiyari Lal Kalyani by the Calcutta High Court. The case of provision for the expenses of the marriage of the minor daughter would, therefore, stand on the same footing, if not on a be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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