AVTAR KRISHAN GUPTA Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) IN respect of two asst. yrs. 1968 -69 and 1969 -70 these two references -one at the instance of the Revenue and the other at the instance of the assessee -require us to consider the following questions : Asst. year 1968 -69: R.A. No. 1342 of 1975 -76:

(2.) AT the outset it should be noted that there was a difference of opinion between the two members of the Tribunal who heard the matter initially and only one question was referred to the third member. The question regarding the goodwill account was never referred to the third member, even though there was a difference of opinion. In the result the question of goodwill account was never ultimately decided by the Tribunal and, therefore, questions 1 and 2 in both the years do not arise out of the order of the Tribunal.

(3.) HAVING regard to the provisions of S. 171, there cannot be any doubt that the ITO should have gone into the question of the partial partition and recorded a finding. We are of the opinion that this is a statutory requirement which the Assessing Officer failed to comply with in the instant case. Therefore, the Tribunal was fully justified in remanding the matters with a direction to the assessing authority to decide the question of partial partition.