Share income from a business allotted to a co-parcener on partial partition becomes his personal property and is not assessable in the hands of the HUF.

, J.

1. The Income-tax Appellate Tribunal, Chandigarh Bench, has referred the following question for the opinion of this court : "whether, on the facts and in the circumstances of the case, the Tribunal was right in law in holding that the share income of Talu Ram from Ganesh Factory should be assessed in the hands of Talu Ram, HUF and not Talu Ram, individual ?"

2. The aforesaid question arises from the following facts : Prior to April 1, 1960, there was a Hindu undivided family consisting of Muhi Kesho Ram as the karta and his two sons, Talu Ram and Madan Lal, as the other co-parceners. The Hindu undivided family had a business in which it had a net capital of Rs.27,440, which was divided equally amongst the co-parceners. At the time of the aforesaid partition, Talu Ram constituted his own Hindu undivided family, consisting of himself as karta, his wife, a major son, a minor son and a minor daughter, as members of the Hindu undivided family. Talu Ram represented his Hindu undivided family of five members as a partner in a representative capacity as karta in Ganesh Factory, Rajpura, till September 30, 1966. On October 1, 1966, Talu Ram effected a partial partition of the capital of Rs.23,852 which stood invested in the aforesaid firm. Talu Ram, his wife and two sons were allotted one-fourth share in the partial partition. The Hindu undivided familys share in the building and machinery was kept joint.

3. The dispute has arisen with regard to one-fourth share allotted to Talu Ram in the partial partition effected on October 1, 1966, as to whether it has to be considered as belonging to him in his individual capacity or to the smaller Hindu undivided family representing Talu Ram, his wife and his minor daughter.

4. For the assessment years 1971-72 and 1972-73, Talu Ram, as karta of the smaller Hindu undivided family, declared incomes of Rs.25,350 and Rs.23,290 respectively. Before the Income-tax Officer, in assessment proceedings, a question arose as to whether the share which was allotted to Talu Ram in the partition effected on October 1, 1966, which remained invested in Ganesh Factory, belonged to him individually or to the smaller Hindu undivided family as claimed by the assessee. While the Income-tax Officer held that the income has to be considered as the individual income of Talu Ram, the Appellate Assistant Commissioner and the Tribunal decided in favour of the assessee on the basis of certain decided cases. That is how the question of law has been referred.

5. On a consideration of the matter, we are of the view that the facts of the case are identical with the facts of CIT V/s. K. Satyanarayan Murty [1984] 147 ITR 140, a decision ,of the Division Bench of the Orissa High Court. The following dictum was laid down by the Honble R. N. Misra C. J. (the present Chief Justice of India) (at page 147) : "in the instant case, the property in dispute (the share in Sri Durga Stores, allotted to him on partial partition) was his personal property and had no longer the incidence of joint family character. There is no claim of throwing it into the family hotchpot. "

6. The aforesaid quotation squarely applied to the facts of the present case. On partition of the investment made in Ganesh Factory, Talu Ram was allotted one-fourth share which he allowed to continue in the same business and, from that share, he earned income to be accounted for in the assessment years 1971-72 and 1972-73. On partial partition of the business assets, it is hard to understand how the share allotted to Talu Ram became the assets of the smaller Hindu undivided family. One can understand that if a karta effects a partial partition with his sons, grandsons and great grandsons, the share allotted to his sons may be considered to belong to their Hindu undivided family. In this case, on October 1, 1966, there was a partial partition of the assets in a business by the father of Talu Ram and his two sons and the share which came to Talu Ram was rightly co