TaxTMI 
TaxTMI 
1966 (10) TMI 36
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.... the family, subject to the right of maintenance in favour of the mother of Sir Chinubhai. In Schedule A, Part I, properties which were allotted to Sir Chinubhai were set out. In Parts II and III of Schedule A properties which were collectively allotted to the share of Udayan, Kirtidev, Achyut and Lady Tanumati were set out. It was declared by the decree that the properties movable and immovable " described in Parts II and III of Schedule A shall absolutely belong to and vest in the four defendants " (the three sons and Lady Tanumati) " in equal shares in full satisfaction of their respective rights in the joint family properties subject, as regards the properties decribed in Part II of Schedule A, to the provisions of the Baronetcy Act ". Schedules B, C and D set out the debts and liabilities of the joint family. Pursuant to the decree, Sir Chinubhai took his share in the properties allotted to him, separately. The other properties remained undivided between Udayan, Kirtidev, Achyut and Lady Tanumati---each holding a fourth share as tenant-in-common, with the other co-sharers. On December 3, 1952, Sir Chinubhai applied to the Income-tax Officer, A-111 Ward, Bombay, for an order....
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....y the Income-tax Officer. In the view of the Tribunal, by the decree of the High Court there was severance of the joint status between the members of the joint Hindu family, but the partition was partial, and " it did not follow that as regards the remaining persons or the remaining properties which had not gone out of the fold of the Hindu undivided family the assessment in respect thereof could not be made in the status of a Hindu undivided family ". The Tribunal rejected the view that once an order under section 25A(1) is passed, the Income-tax Officer is for ever precluded from making assessment in the status of a Hindu undivided family. The Tribunal thereafter referred at the instance of the assessees the following question for the opinion of the High Court of Gujarat : " Whether, on the facts and in the circumstances of the case, the assessments made on the assessee as on a Hindu undivided family consisting of the three sons of Sir Chinubhai Madhavlal, viz., " Udayan, Kirtidev and Achyut and the wife of Sir Chinubhai Madhavlal, viz., Lady Tanumati, were correctly so made ? " The High Court answered the question in the affirmative. Against that order, these appeals have ....
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....where he cannot claim any definite portion of the property... No doubt, the expression 'division in definite portions' will have to be construed with regard to the nature of the property concerned. A business cannot be divided into parts in the same manner as a piece of land ; division may only be possible in the books. Special cases will have to be dealt with by the Income-tax Officer when they arise. If he comes to the conclusion that, having regard to the nature of the property, what has been done amounts to a division in definite portions, he will record his finding under sub-section (1) ; if he comes to the conclusion that it does not, then he will have to go on assessing the family under sub-section (3). " There is no doubt that Sir Chinubhai took possession of his share in the family estate which was allotted to him. Between Sir Chinubhai and the assessees there was, therefore, partition of the joint family property in definite portions. The shares allotted to the assessees were, however, not divided in definite portions inter se. It is true that Part II of Schedule A of the decree described settled properties under the Baronetcy Act 8 of 1924 and those properties were no....
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....ndu undivided family could be made after an order under section 25A had been recorded only if it was proved that under the personal law they formed a joint Hindu family, and of that there was no evidence. The contention raised on behalf of the department, which appealed to the Income-tax Officer and the Tribunal, that the original Hindu undivided family of Sir Chinubhai Madhavlal continued to exist, notwithstanding the order of partition recorded under section 25A(1), in our judgment, cannot be sustained. When the Income-tax Officer, Bombay, recorded an order that the property had been partitioned in definite portions, the family ceased to exist. It is true that among the assessees the property had not been divided by metes and bounds, but they could still not be assessed as members of a Hindu undivided family because such a relation did not exist between them after severance of the joint family status of the family in which Sir Chinubhai was the karta. The Income-tax Officer, Ahmedabad, in substance sought to revise the previous order passed by the Income-tax Officer, Bombay, recording partition under section 25A, and to revive the original family so as to make the income of th....