GORDHANDAS T MANGALDAS Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) UNDER Section 33 of the Indian Income-tax Act (XI of 1922), the Income-tax Appellate Tribunal, Bombay Bench, (consisting of N. R. Gundil, Judicial Member, and P. C. Malhotra, Accountant Member), delivered the following judgment on November 28, 1941.

(2.) TILL the assessment year in question, the appellant and his three sons were a Hindu undivided faimely governed by the Mitakshara schoolof Hindu law, and the appellant used to be assessed on that footing in respect of the total family income which is chifly derived from properties situated in Bombay. In the assessment of 1939-40 it was alleged that there was a partition in the family, the severange of coparcenary being expressed in several letters, dated July 2 and 3, 1939, which the sons wrote to the father and to one another declaring their intention to aeparate and to enjoy their respective share in the joint faimly property, stated to be one-fourth in each case in severalty. They also proposed to appoint Messrs. Little & Co., Solicitors, to act for them in the matter of completing the partition and preparing necessary Deeds of Settlement of their respective share with a view to preserve them from being wasted. There is, however, no evidance on record that the appellant father gave a corresponding assent to his sons declarations except claiming a partition before the Income-tax Officer and in appeal. But the matter apears to have been taken up by the Solicitors, although nothing further than preparing certain drafts of deeds was done till the date of the present assessment. There is no dispute as to these several facts. The learned Counsel expressly admitted before us that the family property has not been divided by metes and bounds.

(3.) COMING to the main question, the substance of the learned Counsels arguments is that in a joint Hindu family governed by the Mitakshara school an unequivocal expression of intention by a member or members constitutes a partition; and that, thereafter, they hold the joint family property in ascertained shares, an actual division by metes and bounds not being necessary to complete the severance. He contends further that holding of the family property in ascertained shares by the members is all that is required by Section 25A(1) of the Act, as amended in 1939. In other words, it is argued that an ascertainment of shares on a partition in the manner just stated amounts to a partition of the joint family property among the various members in definite portions contemplated by Section 25A, and that it is not necessary that there should be an actual division of the property by metes and bounds. There can be no doubt or dispute as to the correctness of these two propositions of Hindu law stated by the learned Counsel. At the same time, it must be borne in mind that such a kind of partition, i.e., by an ascertainment of shares in the family property, primarily affects the questions of alienation and succession among Hindus with which we are not concerned in this case. The precise point before us is whether a notional partition of family property by an ascertainment of the proportion of shares is all that is demanded by Section 25A(1) of the Income-tax Act which lays down that the Income-tax Officer shall record an order of partition if he is satisfied that the joint family property has been partitioned among the various members or groups of members in definite portions. In other words, the point we have to decide is whether an ascertainment of shares resulting from an unequivocal expression of intention to separate, i.e., a notional division, amounts to a partition in definite portions within the meaning of the section. The learned Counsels argument is that both the expressions mean the same thing, while it is contended on behalf of the Department that a mere notional ascertainment of shares does not suffice to fulfil the condition laid down by the section.