COMMISSIONER OF INCOME TAX Vs. SURESH GOKULDAS

JUDGEMENT

(1.) THE question raised by this reference is covered by S. A. Raju Chettiar v. Collector of Madras, [1956] 29 I.T.R. 241 and the order in Tax Case No. 13 of 1965 both of which are against the revenue. But learned counsel for the revenue invited us to re-consider the position on the only ground that in neither of them Lakshminarain Bhadani v. Commissioner of Income-tax, had been referred to. We shall presently show that Lakshminarain Bhadani v. Commissioner of Income-tax makes no difference whatever to the conclusion arrived at on the legal position in Tax Case No. 13 of 1965.

(2.) THE reference relates to the assessment year 1955-56 for which the assessee, as a Hindu undivided family, of which the karta was one Gokuldas Thulsidas, was charged to tax. He died on April 19, 1957. He had filed the return for the year on April 2, 1957, and the assessment was completed on February 19, 1958, with Suresh Gokuldas succeeding as the karta. A sum of Rs. 64,000 was added to the income returned and the attempt of the assessee in appeals met with no success. THEreafter, in proceedings under Section 28 culminating in an order dated March 30, 1961, a penalty of Rs. 50,000 was levied on the family. THE Income-tax Officer rejected the claim of the assessee that a partition had taken place on November 9, 1958, in the family. THE Appellate Assistant Commissioner, however, differed from him and held that the partition of that date was genuine and had taken place. THE department's appeal having failed, at the instance of the Commissioner, the question referred to us is :