COMMISSIONER OF INCOME TAX Vs. VIRENDRA KUMAR GUPTA

JUDGEMENT

(1.) THESE four applications filed by the Commissioner of Income-tax, Agra, under Section 256(2)of the Income-tax Act, 1961 (hereinafter referred to as "the Act"), raise common questions which are stated to be questions of law said to be arising out of a consolidated order dated March 24, 1986, passed by the Income-tax Appellate Tribunal, Allahabad Bench, Allahabad, for the assessment years 1978-79 to 1981-82.

(2.) THE assessee had adopted the calendar year as its previous year. Up to December 31, 1966, the assessee was having share income from the firm, Daily Jagran, in the status of a Hindu undivided family and till the assessment year 1977-78, the said share income was assessed in that status. On December 31, 1976, there was a partial partition in the family of the assessee. According to the terms of the said partial partition, share capital in the firm, Daily Jagran, of the Hindu undivided family of the assessee was partitioned between the assessee, his wife and his two minor sons. On the same day, a finance agreement was also entered into by which it was made clear that the said share capital in the firm which stood partitioned as aforesaid among the four members of the Hindu undivided family would remain invested in the firm as it was before the partition. It was further agreed that after the said partition, the share of profit of the assessee would be one-fourth and the remaining three-fourths would go to the wife and the minor sons of the assessee. Admittedly, this partial partition was duly accepted and recognised by the Income-tax Officer. Consequently, the Income-tax Officer made the assessment of the assessee for the assessment year 1978-79 onwards in the status of an individual and not in the status of a Hindu undivided family which was adopted before the partition. THE Department thus had accepted not only the factum of partition but also the changed status of the assessee. THE parties are not at issue so far as these facts are concerned.

(3.) WE have heard Sri Bharatji Agrawal, learned counsel appearing for the Commissioner of Income-tax. In this case, we find that the Income-tax Appellate Tribunal has noticed that the Department had accepted the factum of partial partition as genuine and has also changed the status of the assessee. The Tribunal has also recorded a finding of fact that the finance agreement dated December 31, 1976, was a genuine document. It has also recorded a finding that after the partial partition and in view of the said finance agreement, the share income as a whole never reached the assessee. In fact, in the past, it was the Hindu undivided family which was being assessed on the share income. WE find that the Tribunal has recorded a finding that the share income as a whole was never assessed on the assessee in his individual capacity even before the partial partition. The Tribunal has further held, on the admitted facts of the case, that the assessee has not received the share income as a whole, that it stood divided among the four members and that there was no material on record to the contrary.