MUNISWAMY S D Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) IN respect of the assessment years 1973-74 and 1974-75 the following question has been referred for our consideration under section 256(2) of the INcome-tax Act, 1961 :

(2.) THE assessee is a Hindu undivided family consisting of S. D. Muniswamy, his wife and a minor son, Mahesh. THE family owned several properties and the karta, Muniswamy, claimed that the was partial partition on November 1, 1972. THE document evidencing the same dated November 9, 1972, was furnished to the Revenue. Initially, the Income-tax Officer accepted the case of the assessee that there was a partial partition and one item of the family property was allotted to the share of the minor son and seven items of properties were allotted to the share of Muniswamy and the family jewellery was allotted to the she of Muniswamy's wife. THEre was no reference to the other properties; obviously, the other properties continue to be Hindu undivided family properties as stated in the memorandum of partial partition. THE partial Partition was thus accepted in the assessment year 1973-74. However, the Commissioner did not accept this partial partition and initiated proceedings under section 263 of the Act and ultimately held that it was not a case of partial partition. Following the aforesaid decision of the Commissioner, the case of partial partition was not accepted for the assessment year 1974-75 by the Income-tax Officer. THE assessee approached the Appellate Tribunal without any success resulting in these references.

(3.) FROM the order of assessment, dated April 13, 1977 pertaining to the assessment year 1973-74 it is disclosed that, in addition to these properties, the Hindu undivided family also had business shares in two firms (1) Messrs. S. D. Dhondusa Dhaktappa and Brothers and (2) Messrs. Shivaji and Company.