COMMISSIONER OF INCOME TAX Vs. RAJEEV MAHESHWARI HUF

JUDGEMENT

(1.) THE Income-tax Appellate Tribunal, Allahabad Bench, Allahabad, has under Section 256(1) of the Income-tax Act, 1961, stated a case and referred the following question for the opinion of this court :

(2.) THE aforesaid question arises out of the Tribunal's order dated September 5, 1981, passed in ITA No. 2006 (Alld.) of 1980 for the assessment year 1976-77. THE assessee, Rajeev Maheshwari (HUF), was a partner in a firm, Commercial Traders. THE Hindu undivided family consists of Rajeev Maheshwari, his wife, Smt. Shakuntala Maheshwari, and a minor son, Yashwant Maheshwari. THE family claimed that there was a partial partition in the family in respect of a sum of Rs. 50,000 which stood to the credit of the family in a firm, Commercial Traders. Out of the said sum of Rs. 50,000, an amount of Rs. 5,000 was allotted to Rajeev Maheshwari and Rs. 45,000 was allotted to Smt. Shakuntala Maheshwari and master Yash-want Maheshwari (HUF). An application was made to the Assessing Officer to record this partial partition which was dismissed. THE Assessing Officer rejected the claim for partial partition for the following reasons :

(3.) IN our view, the reasons given by the Assessing Officer for not recognising the partial partition were not tenable and were irrelevant. IN the case of Apoorva Shantilal Shah v. C/T [1983] 141 ITR 558, the Supreme Court held that the karta of a Hindu undivided family was competent to effect a partial partition even though there was no other adult members in the family. IN the case of Sushil Kumar and Sons v. ITO [1998] 234 ITR 98 (All), this court held that a partial partition of the amount invested in a firm could be the subject of partial partition. Then in the case of Ram Nath v. CIT [1996] 217 ITR 661 (All), it was held that the mother and son can take jointly amongst themselves a share of the family property.