COMMISSIONER OF INCOME TAX Vs. PUSHPAVATI KANTILAL

JUDGEMENT

(1.) THE revenue has got referred for the opinion of this court under s. 256(1) of the I. T. Act, 1961, a question of law arising from the order of the Income -tax Appellate Tribunal, Ahmedabad Bench ' A'. The said question reads as under : 'Whether, on the facts and in the circumstances of the case, the Income -tax Appellate Tribunal was correct in law in holding that the Appellate Assistant Commissioner was not justified in passing the rectification orders for the assessment years 1962 -63 and 1963 -64, under section 154 of the Income -tax Act, 196 ?'

(2.) A few facts leading to this reference may now be stated. The assessee is an individual. The relevant assessment years are 1962 -63 and 1963 -64. The assessee was also a member of the joint Hindu family consisting of Kantilal, his wife, Pushpavati (the present), Kantilal's son, Dinces, his daughter -in -law, Usha, and his daughter, Rupande. Dinesh died on August 15, 1958, and under s. 6 of the Hindu Successsion Act, his widow and his mother, Smt. Pushpavati, the assessee in the present case, became entitled to his 1/3rd share in the coparcenary property. In the assessment for the assessment years 1962 -63 and 1963 -64, the ITO added as her share (being 1/2 of 1/3rd share) 1/6th of income from the property which belonged to the HUF, as a protective measure. In the case of the HUF of Kantila, for the assessment years 1960 -61 and 1961 -62, the question arose in appeal before the Tribunal as to whether the HUF continued after the death of Dinesh and the status was correctly taken as an HUF. On this question, the Tribunal took the view that even on the death of Dinesh as a member of HUF, no division of the HUF was brought about and that even before the passing of the Hindu Succession Act came into force was not different. Thus, according to the Tribunal, 1/3rd share from the HUF due to Dines Mantilal cannot be excluded from the computation of total income of Kantilal Manilal (HUF).

(3.) THEREAFTER , for the assessment year 1962 -63, pertaining to the assessment proceedings for the HUF of Kantilal Manilal, another Bench of the Tribunal took a different view and held that to the extent of 1/3rd share of the coparcenary property which originally belonged to the deceased, Dinesh, it devolved on the two heirs, that is, his mother, the present assessee, and his widow and to that extent, the property ceased to belong to the HUF. The Tribunal, therefore, held that neither the 1/3 shares of the property nor the income therefrom could be treated as belonging to the HUF. This order of the Tribunal was in Income -tax Appeal No. 4567 of 2968 -69. pertaining to the HUF of Kantilal for the assessment year 1962 -63, which was decided on 29th September, 1970.