COMMISSIONER OF INCOME TAX Vs. NARAYAN CHANDRA DEY

JUDGEMENT

(1.) This is a reference under Section 256(1) of the Income-tax Act, 1961. The statement of the case relates to the assessment year 1961-62, the relevant previous year being 1367 B.S. One Gour Hari Seal died in or about 1943, leaving behind him his widow, Ratnamala Dassi and four sons, Naba Kumar, Tincowrie, Bhupen and Samar. In 1948, Ratnamala purchased a plot of land in her own name as stated in the statement of the case. After the said purchase, a five-storeyed building was erected on the said land.

(2.) The assessee has been assessed in the status of a Hindu undivided family and in course of such assessment as it was contended on its behalf that the family was divided, the Income-tax Officer issued notices to the members and they submitted that there had been a complete partition of the joint family and the property had been partitioned by metes and bounds. In support of their above contention they produced a deed of partition dated March 21, 1960, before the Income-tax Officer who has, however, held that the said property was not partitioned by metes and bounds and accordingly he assessed the income of this property in the hands of the Hindu undivided family.

(3.) The assessee preferred an appeal before the Appellate Assistant Commissioner and relied on the decision of this court in the case of Biswa Rajan Sarvadhikari v. Income-tax Officer [1963] 47 ITR 927 (Cal). It was contended on behalf of the assessee that in view of the said decision there could be no undivided Hindu family and the assessee could not be assessed as a Hindu undivided family. The Appellate Assistant Commissioner has upheld the said contention of the assessee and has deleted the sum of Rs. 32,140 which represents the income from the said property.