COMMISSIONER OF INCOME TAX Vs. MULCHAND SUKMAL JAIN

JUDGEMENT

(1.) THIS reference under S. 256(1) of the INCOME TAX ACT, 1961, for short "the Act", has been made at the instance of the Revenue. The following is the question referred to the High Court :

(2.) THE assessment in question relates to the asst. year 1979 -80. The assessee is an HUF consisting of a son and his mother only. The assessee contended before the ITO that there was an oral partition or family arrangement which took effect from 4th April, 1979 and in confirmation of the same the parties executed a document on 18th May, 1979 and under the partition immovable properties described in Sch. 'B' were allotted to son and movable properties described in Sch. 'C' were allotted to the mother and thereafter they have been enjoying the properties separately. On these averments it was contended that HUF cannot be assessed and the individuals may be assessed. The ITO overruled this contention on the ground that the mother, though she is a member of the HUF, is not a coparcener and there cannot be a partition between the only male member of the HUF and a female member and the partition therefore is not valid and cannot be recognised for the purpose of S. 171 of the Act. In appeal by the assessee, the AAC reversed the finding of the ITO and upheld the partition and directed the ITO to pass consequential orders. In appeal by the Revenue, the Tribunal upheld the order of the AAC.

(3.) LEARNED counsel for the Revenue contended that if there is only one male member in the HUF, the female member of the HUF cannot claim partition and relied on decisions of the Rajasthan High Court in Dalichand Tejraj vs. CIT (1974) 97 ITR 383 (Raj), of the Madras High Court in B.B.C. Natrajan vs. CIT 1978 CTR (Mad) 106 : (1978) 111 ITR 539 (Mad), of the Gujarat High Court in CIT vs. Shantikumar Jagabhai (1976) 105 ITR 795 (Guj). On behalf of the assessee reliance is placed on the decisions of the Punjab & Haryana High Court in CIT vs. Narain Dass Wadhwa (1980) 14 CTR (P&H) 99 : (1980) 123 ITR 281 (P&H) and Ram Narain Paliwal vs. CIT (1986) 52 CTR (P&H) 245 : (1986) 162 ITR 539 (P&H).