MAHENDRA KUMAR SEWTI DEVI Vs. COMMISSIONER OF INCOMETAX

JUDGEMENT

(1.) THIS is an application under Section 256(2) of the Income-tax Act, 1961, in which the following question has been referred to us for our opinion : "Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in holding that partial partition dated April 1, 1973, was invalid as Smt. Sewti Devi, a party to the said partition, was on partition neither allocated any share nor otherwise compensated in lien of non-allocation of share ?"

(2.) LEARNED counsel for the assessee has invited our attention to the decision of a Division Bench of this court in the case of CIT v. Brahma Swarup and Sons [2002] 253 ITR 604. This decision is distinguishable. In the present case the finding of fact recorded by the Tribunal in para. 4 of its order is that the mother, Smt. Sewti Devi, was allocated no portion of the properties under division nor was she compensated in lieu of the loss of her share in the said properties. We are in agreement with the view taken by the learned Tribunal that it was not a valid partition. The reference is therefore, answered in the affirmative, i.e., in favour of the Department and against the assessee.