COMMISSIONER OF INCOME TAX Vs. GYAN CHAND

JUDGEMENT

(1.) THE Income Tax Appellate Tribunal, New Delhi has referred the following two questions of law under Section 256(1) of the Income Tax Act, 1961 ( here in alter referred to as the Act) for opinion to this Court: -

(2.) BRIEFLY stated the facts giving rise to the present case are as follows: -

(3.) HE held that the assessee cannot plead that it was not hitherto assessed as undivided. The Appellate Assistant Commissioner found that although one of the members of HUF was assessed at Jaipur and in the assessment column the status was mentioned as individual. But, as a matter of fact, the income of HUF was assessed. He was of the view that it was a case of mistake on the part of the assessing authority and, as such, no advantage can be derived out from this mistake by the assessee. The Tribunal in Second appeal allowed the claim of partial partition as set up by the assessee on the ground that conditions of Section 171(9) of the Act having not been fulfilled, the Income Tax Officer can not refuse the claim of partial partition. It took the view that no assessment was , made in the status of HUF the assessee is out of the reach of Section 171(9) of the Act. Further it took a view that the word ' assessed' used in Section 171(9) of the Act means passing of the assessment order prior to the date of partial partition.