COMMISSIONER OF INCOME TAX Vs. VISHNUKUMAR BHAIYA

JUDGEMENT

(1.) BY this reference under Section 256(1) of the I.T. Act, 1961, the Income-tax Appellate Tribunal, Indore Bench, Indore, has referred the following question of law for the opinion of this court :

(2.) THE facts giving rise to this reference are as follows : THE assessee, Vishnukumar Bhaiya, received certain assets on partition of the HUF of Shri Ramnivas Bhaiya on October 24, 1965. By order passed on April 25, 1970, the ITO recognised this partition under Section 171 of the I.T. Act. THE assessee was unmarried at the time of partition. THE income from the share of the joint family property received by the assessee was assessed in his individual capacity up to the assessment year 1973-74. On May 17, 1973, the assessee got married. THEreafter the assessee filed two returns for the accounting year 1973-74 in two different capacities contending that after his marriage his status was changed to that of an HUF because the income derived by him was from assets fallen to his share in the partition of the HUF. THE ITO framed a single assessment for the whole year treating the status of the assessee as individual as hithertofore. On appeal by the assessee the A AC held that the assessee was liable to be assessed as an individual up to May 17, 1973 only, when he got married and that thereafter the income derived by the assessee should be assessed treating the assessee as manager of the HUF. Aggrieved by the order of the AAC the Department preferred an appeal before the Tribunal. THE Tribunal upheld the order of the AAC and dismissed the appeal. At the instance of the Department the Tribunal has referred the aforesaid question of law for the opinion of this court.

(3.) NOW there can be no difference in the nature of the property which was at one time the self-acquired property of a Hindu and which he threw into the common hotchpot of the family and the property which he received in partition as a single member. In the absence of a son he has the absolute power of disposal over the said property. The position would be different if the property is devolved upon a person as a sole surviving coparcener without the joint family being disrupted.