TaxTMI 
TaxTMI 
1991 (7) TMI 146
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....f the following members:--- (1) Shri Ram Nath, father of the karta. (2) Shri Vinod Kumar, son of karta. (3) Shri Vijay Kumar, son of karta. (4) Shri Raj Kumar, son of karta. (5) Smt. Ashrafi Devi, wife of karta. During the scrutiny of accounts of the assessee-HUF for assessment year 1982-83 the Income-tax Officer noticed that the assessee had claimed total partition of joint family property which consisted of the following:---- (A) Immovable properties : (i) House property No. 216, Kishan Ganj, Pilakhuwa ; (ii) 5 shops at U.S. Gate, Pilakhuwa ; (iii) 1 shop at Gandhi Bazar, Pilakhuwa. (B) Movable properties : Capital standing in the name of the assessee-HUF -- Rs. 40,000. 3. During the course of the en....
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....on Kiryana business in the name of Babu Ram Ram Nath. Though the properties in question had been mutated in the names of the different coparceners in the records of the Municipal authorities, the assessing officer invoked Explanation to section 171 and held that there had been no physical division of the properties, but a mere severance of status. He accordingly rejected the claim of total partition by holding that the claim was not genuine. 5. The learned Appellate Assistant Commissioner of Income-tax confirmed the order of the assessing officer in this regard. 6. Before us, Shri Ashok Kumar Gupta, the learned counsel for the assessee, submitted that the house property No. 216, Kishan Ganj, did not admit of any physical partition bec....
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....g to her the statement of Shri Vinod Kumar in which he could not even give the number of the property which allegedly fell to his share clearly showed that the partition was made-up affair. Relying on the Supreme Court decision in Kalloomal Tapeswari Prasad (HUF) v. CIT [1982] 133 ITR 690 it was submitted that the partition under the Hindu Law and the partition under the Income-tax Law were two different concepts and that a transaction can be recognised as a partition under section 171 of the Act only if, where the property admits of a physical position, a physical division of the property has taken place. 8. It was vehemently argued that the shops and the house property were capable of being physically divided and that such a division h....
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....e not partitioned by metes and bounds, no finding of partition can be recorded under section 171 of the Act. This argument of the learned counsel for the assessee, therefore, fails and is rejected. 10. As regards the submission of the learned counsel that the partition was recognised by Court decree, we accept the contention of the learned Departmental Representative that in Income-tax matters the Income-tax authorities are entitled to take an independent view. 11. In the case of Narendrakumar J. Modi v. CIT [1976] 105 ITR 109 the Supreme Court had an occasion to deal with this very issue. In that case the assessee claimed before the first appellate authority that a suit for partition had been filed and the city civil Court had passed....
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....he learned counsel for the assessee has not brought on record any evidence to show that such physical partition was neither feasible nor practicable nor possible. The whole transaction appears to have been done with a view to avoiding tax liabilities by the assessee-HUF. The obtaining of Court's decree by the consent of the parties also appears to be a part of the same chain and is designed to create a veneer of genuineness of the alleged partition. We are clear in our mind that for the reasons mentioned by the Departmental authorities and for the reasons given above, there was no total partition of the assessee-HUF and the claim of total partition had been rightly rejected. 16. In the result, the assessee's appeal is rejected. 17. We no....