The doctrine of Hindu Law that a son conceived in his mother's womb is equal in many respects to a son actually in existence in the matter of inheritance, partition, survivorship and the right to impeach an alienation made by his father, does not apply for the purpose of determining the coming into being of a Hindu undivided family as an assessable entity under the Income-tax Act, 1922.

Judgement

SIKRI, J. : This appeal, by certificate of the High Court of Madras, is directed against its judgment in a reference made to it under S. 66(1) of the Indian Income-tax Act, 1922 hereinafter referred to as the Act, by the Income-tax Appellate Tribunal, Madras. The question referred to was " whether the assessment of the income of the assessee, other than his salary in the hands of the assessee, as an individual and not as a Hindu undivided family till 11th December, 1952, for the assessment year 1953-54 is valid."

2. The question arose out of the following facts. The appellant, hereinafter referred to as the assessee, is the youngest son of T. V. Sundaram Ayyangar, who was the Karta of a Hindu undivided family consisting of a number of persons. There was a partition of the above family and 150 shares of Rs. 1,000 each in T. V. Sundaram Iyengar and Sons Limited, a private limited company, were divided equally among the co-parcencers, the assessee getting 25 shares of the value of Rs. 25, 000. With the aforesaid shares as nucleus, the assessee acquired house-properties, shares and deposits upto March 31, 1952. As the assessee was also the Service Manager of the aforesaid private limited company, he also received substantial remuneration.

3. The first son, named Venugopal, was born to the assessee on December 11, 1952, and it is common ground that the conception of the child must have taken place sometime in March, 1952.

4. For the assessment year 1952-53, the assessee was assessed as an individual with reference to all his sources of income. For the assessment year 1953-54 (accounting year April 1, 1952 to March 31, 1953) the assessee claimed that income from all sources, except salary, should be assessed in the hands of H. U. F., consisting of himself and his son Venugopal, which according to him had come into existence in or about March 1952 when Venugopal was conceived.

5. The Income-tax Officer, while admitting that a male child acquires coparcenary rights in the family even from the date of his conception, considered that this proposition applied only as far as the minor s rights inter se other members were concerned, and as far as the claims of the State or outsiders were concerned, he thought that an unborn son would not come into the picture. Therefore, he recognised the family only from the date of the birth of the child, viz., December 11, 1952. The Appellate Assistant Commissioner up held his view and the assessee also failed before the Appellate Tribunal . The High Court answered the question against the assessee.

6. Mr. A. V. Viswanatha Sastri, the learned counsel for the assessee, contends that under the Act Hindu undivided family is a separate unit and in determining whether a Hindu undivided family exists or not, and if it exists, from what date it has come into being, regard must be had to the principles of Hindu Law for the Act does not lay down any principles regarding this matter. He then urges that it is well settled that according to Hindu Law, a son conceived has the same rights of property as a living son, and this rule, he says, is not a matter of fiction but a substantive rule of Hindu Law. He further says that it is well settled according to Hindu Law that joint Hindu family comes into existence from the date a son is conceived, and as in this case the son was conceived in March 1952, the Hindu undivided family was in existence from the beginning of the accounting year 1952-53.

7. The learned Attorney-General, who appears on behalf of the Revenue, does not dispute the existence of the doctrine of Hindu Law relied on by Mr. Sastri, but says that this doctrine applies only for a special purpose, the purpose being to safeguard the rights of the son to property, and that Hindu Law itself recognises that this doctrine is not of universal application. He urges, in the alternative, that at any rate the Act is concerned with realities; under the Act the person to whom income accrues must be a visible reality