INCOME TAX APPELLATE TRIBUNAL, INDORE
RAM SWARUP, S.N. Rotho, JJ.
Income-tax Officer (Second) -Appellant
Versus
Arun Kumar J. Roongta (HUF) -Respondent
IT APPEAL NO. 4298 AND 4313 (BOM.) OF 1982
Decided On : 21-04-1983
Advocates Appeared:
L.N. Joy,V.H. Patil
ORDER
S.N. Rotho, Accountant Member - These two appeals filed by the department relate to the same assessee, and so, they are heard together and disposed of by this common order, for the sake of convenience.
2. Appeal No. 4298/Bom/1982 has been filed against the order dated 31 May 1982 of the AAC allowing the assessee's claim for partial partition under section 171 of the Income-tax Act, 1961.
3. The assessee was a member of the HUF consisting of himself, his father Jagmohanlal Roongata, and his mother Smt. Mohini Devi. There was a partition in this HUF by a deed dated 30th March, 1976. This partition has been recognised by an order under section 171 of the Act dated 10th May, 1977 passed by the ITO.
4. After the joint family properties were partitioned as stated above, the assessee, Arunkumar, received his share of the joint family property on behalf of his branch of the family consisting of himself, and his wife Smt. Chandralekha. A partition deed dated 30th March 1976 (the same day on which the bigger HUF was partitioned) was executed by which there was a partial partition of the HUF properties received by the assessee, Arunkumar, between himself and his wife. The assessee, Arunkumar, claimed that the said partial partition of the joint family properties received by him on partition, between himself and his wife as recorded in the deed dated 30th March, 1976 should be recognised. The ITO declined to recognise the aforesaid partition on the ground that there could be no partition in the case of the family having a single coparcenar, like Arunkumar the assessee in the family consisting of Arunkumar and his wife. An alternative contention was raised by the assessee to the effect that the partition between Arunkumar and Smt. Chandralekha was envisaged and recorded even in the other partition deed dated 30th March, 1976 of the bigger HUF. It was urged that at the time of the aforesaid partition of the bigger HUF between the assessee and his father and his mother, his wife Smt. Chandralekha had claimed a share in the joint family property on account of her maintenance. In order to avoid dispute, a family settlement was arrived at by which on the same day, the properties allotted to the assessee on partition of the bigger HUF was again partitioned between himself and his wife according to another deed executed on the same date. In other words, the case of the assessee was that even if the transaction recorded by the deed dated 30th March, 1976 between himself and wife did not amount to a partition, it was in the nature of a family settlement and consequently, the assets allotted to the wife and the income arising therefrom could no longer belong to the assessee. The ITO rejected this contention also on the ground that no Hindu lady had a right to claim partition but they have only a right to maintenance out of the HUF property.
5. The assessee appealed to the AAC, and contended that the ITO erred in his decision. Reliance was placed on the decision in the case of Commissioner v. Naraindas wadhwa (1980) 123 ITR 281 (P&H) wherein a similar point has been decided in favour of the assessee, after considering the decision of the supreme court in the cases of Kale v. Deputy Director of Consolidation 1976 AIR SC 807, N.V. Narendranath v. CWT (1969) 74 ITR 190 (SC), Pullaiah v. Narasimham AIR 1966 SC 1836 and Ramcharandas 1966 AIR SC 323. The AAC noted that in the aforesaid said case, it has been held that to constitute a partition, there should be a definite and equivocal intention of a member of a joint family to separate from the family limitation and to enjoy his share in severality. In that case also, there was a single male coparcener, who effected the partition between himself, his mother and his two sisters. The court held that the Karta had the power to effect a partition and that he does not cease to be a coparcenar and so his right to claim partition is always there even though he is the sole coparcenar. Further, as held in the ca
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