TaxTMI 
TaxTMI 
1932 (11) TMI 12
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....uction from the petitioner's income under the head of property?" The facts are these :-Diwan Bahadur Kishen Kishore is a Rais of Lahore. He has a brother Diwan Jai Gopal and has also sons. The brother is living separately from Diwan Bahadur .Kishen Kishore and is paid a yearly allowance of Rs. 7,200 and is also given some buildings for his residence. Diwan Raj Kumar, the father of these two gentlemen having died, there was a dispute between them about the succession to the estate and Mr. Atkins, who was Deputy Commissioner of Ferozepore, at the time, was appointed an arbitrator. He gave his award in which it was held that the family was governed by the rule of primogeniture and "all that the younger sons could demand was : (1) their allowances and their houses for residence : or (2) a lump sum of money and a final severance from the estate". Diwan Raj Kumar, it appears, had made a will before his death, and after considering the custom of the family and the terms of the will Mr. Atkins decided that Diwan Jai Gopal should have Rs. 120 per month as his allowance and should also be given separate residence out of the family estate. This allowance was subsequently increased to R....
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....d of that year, serve on the person liable to pay tax on such income, profits or gains, or, in the case of a company, on the principal officer thereof, a notice containing all or any of the requirements which may be included in a notice under sub-s. (2) of s. 22, and may proceed to assess or re-assess such income, profits or gains, and the provisions of this Act shall, so far as may be, apply accordingly as if the notice were a notice issued under that sub-section: Provided that the tax shall be charged at the rate at which it would have been charged had the income, profits or gains not escaped assessment or full assessment, as the case may be" It would be observed that an action under s. 34 can be taken at any time within one year of the end of the year for which the assessment is sought to be made. The assessment in this case was sought to be made for the year 1929-30 and notice was served on the 16th of March, 1931. If s. 34, therefore, is applicable to the case, then the notice must be deemed to have been validly served upon the assessee and the assessment is consequently legal. It is, however, contended on behalf of the assessee that having regard to what has been stated....
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....t may be mentioned that Diwan Jai Gopal is separately assessed to this income as Counsel on both sides stated before us. If the estate had been partible Diwan Jai Gopal would have been entitled to separate his share and to collect its income directly. Obviously in such a case both the brothers would have been separately assessed. In view, however, of the rule of primogeniture and the consequent impartibility of the estate, all that Diwan Jai Gopal has been given in lieu of his share in a separate allowance. That allowance, in my opinion, cannot form part of the income of the family or of. Diwan Bahadur Kishen Kishore. Some cases which were cited before us and in which it has been laid down that an allowance given by the head of the Hindu coparcenary to its members by way of maintenance is liable to be assessed as the income of the coparcenary, have no application to the facts of this case. I have already stated that the two modes of separation of the interest of the younger son in this family, as stated by Mr. Atkins, are the payment of an allowance and assignment of residence or the award of a lump sum and final severance from the estate. A complete separation between the membe....
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....sons, therefore, the family cannot be an undivided Hindu family consisting of the father and the sons because the partibility of the joint estate is an essential feature of the joint Hindu family. Now it is undeniable that the Hindus in this province are governed by the Mitakshara Law and that according to that law when the father and the sons constitute a joint Hindu family the sons can ordinarily claim partition of the coparcenary property in the life-time of their father even against his will. In Hart Kishen v. Chandu Lal 43 IC 667, however, a Full Bench of the Chief Court, Punjab, has held that though under the Mitakshara system of Hindu Law a son can enforce partition even during his father's life-time, in the Punjab this form of Hindu Law is not in force. This judgment appears to be a complete answer to the only ground on which Counsel for the Income-tax Commissioner contended that the assessee cannot be deemed to be member of a joint Hindu family with his sons and, therefore, the father and the sons cannot constitute an undivided Hindu family; the learned Counsel was accordingly forced to take refuge in the assertion that Hari Kishen v. Chandu Lal (43 I.C. 667) lays d....