HARPRASAD MOHANLAL Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) THE order in this case will also govern the disposal of Miscellaneous Civil Case No. 146 of 1983.

(2.) AS directed by this court, the Income -tax Appellate Tribunal, Jabalpur Bench, Jabalpur, has referred the following question of law to this court for its opinion :

(3.) LEARNED counsel for the assessee contended that there was sufficient material on record for coming to the conclusion that the self -acquired property of Harprasad was thrown by him into the common hotchpot; that thereafter it was divided between himself and his sons and that the amount received by each member was contributed towards the capital of a firm, which was constituted by the assessee and his sons, as evidenced by the deed of partnership. Reliance was placed on the decision of the Bombay High Court in Kisansing Mohansing Balwar v. Vishnu Balkrishna Jogalekar : AIR1951Bom4 . It was also contended that the Tribunal ignored the evidence produced by the assessee had filed suits in the name of the firm; that a mining lease had been obtained in the name of the firm and that a deed of declaration was executed by Harprasad on July 17, 1968, declaring partition of the joint Hindu family. Learned counsel for the assessee contended that even if the assessee had failed to prove that there was a partition of ancestral property assessee had failed to prove that there was a partition of ancestral property between Harprasad and his sons, there was sufficient material for holding that the self -acquired property of Harprasad was impressed with the character of joint family property and that after partitioning that property, Harprasad and his sons had formed a partnership, for which registration could not be refused. In reply, it was contended on behalf of the Revenue that whether a firm was or was not genuine was a finding of fact and that it was for the Tribunal to reach a finding on that question.