1983 (4) TMI 106

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....deed dt 30th March, 1976. This partition has been recognised by an order u/s 171 of the Act dt. 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 dt. 30th March 1976 (the same day on which the bigger HUF was partitioned) was executed by which there was a partial partition of 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 wif....

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....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 CIT vs Naraindas wadhwa (1980) 14 CTR (P&H) 99 : (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 vs Deputy Director of Consolidation 1976 AIR SC 807, N.V. Narendranath vs CWT (1969) 74 ITR 190 (SC), Pullaiah vs 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 t....

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....r member, not being a coparcener, can claim partition. He relied on the decision of the Madras High Court in the case of T.G.K. Raman vs CIT & Anr. (1982) 26 CTR (Mad) 440 : (1983) 140 ITR 876 (Mad), wherein it has been held that there could be no partition in a case where there is a single coparcenar, having absolute dominion over the property. Shri L.N. Joy also drew our attention to the decision in the case of V.V.S. Natarajan vs CIT 1978 CTR (Mad) 106 : (1978) 111 ITR 539 (Mad) of the Madras high court, wherein a similar decision has been taken and which case was followed in T.G.K. Raman. He urged that the decision of the AAC is erroneous because of the aforesaid decisions of the Madras High Court. 7. Shri V.H. Patil, the ld. represent....

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....e partial partition effected by the assessee between himself and his wife by a registered deed dt. 30th March, 1976 can be regarded as a valid partition or a family arrangement so that the assessee could no longer be the owner of the assets allotted to his wife or the income arising therefrom. We find force in the contention raised for the assessee. The fact that there was dispute raised by the wife of the assessee at the time of the partition of the bigger HUF has not been controverted. Nor is there any dispute that the property partitioned between the assessee and his wife was HUF property. We find force in me contention raised for the assessee that the only case dealing with the family arrangement was the case of Naraindass Wadhwa. That ....