PETITIONER:
TOLARAM BIJOY KUMAR
Vs.
RESPONDENT:
COMMISSIONER OF INCOME TAX, ASSAM
DATE OF JUDGMENT14/02/1978
BENCH:
BEG, M. HAMEEDULLAH (CJ)
BHAGWATI, P.N.
TULZAPURKAR, V.D.
CITATION:
1978 AIR 504 1978 SCR (2) 834
1978 SCC (2) 98
ACT
Hindu Undivided Family business, Partition of--Nature & character of the share of the property of a coparcener after partition--Whether assessable as individual property or as H.U.F.--Income Tax Act. 1922.
HEADNOTE
The income from the business of Nathmal Tolaram carried on by Narmal was assessed as Hindu Undivided Family income till 1950. After the death of Narmal in 1945, the business was partitioned w.e.f. 6th April 1949 and by a deed of partnership executed on 7th April 1949, the business carried on at two places, Dhubri and Gauripore, was converted by his three sons Srinivas, Nathmal & Tolaram, into a partnership business. In this deed, it wits admitted that the business had been carried on previous to the partition as Hindu Undivided Family business. On an application u/s 25A of the Income Tax Act, 1922 the said partition was recorded and registered in the files of the tax authority on 17th August 1954. On 28-3-1959, the firm of M/s. Nathmal Tolaram was dissolved and a new firm Nathmal Tolaram (Petrol Depot) came into existence. In the assessment year 1959-60, Tolaram claimed that his share in this partnership business should be assessed separately as his individual income. His claim was rejected by the Income Tax Officer, but wag accepted in appeal. However a similar claim for the relevant assessment year 1960-61, to separate assessment of income derived from the partnership business in petrol amounting to Rs. 21,746/- , was rejected by the Income Tax Officer. On further appeals, the Appellate Assistant Commissioner and the Tribunal affirmed the order of the Income Tax Officer. The High Court also answered the reference in favour of Revenue. HELD : Partition only cuts off the claim of the dividing coparceners. When a coparcener receives his share of the joint family property on a partition, such property in the hands of the coparcener belongs to the Hindu Undivided family as the share of the property is taken by him only as representing his branch. The status of such coparcener on partition is not that of an individual. [837 A-D] In the instant case, the share of Tolaram in the partnership which came into being on the partition of the Hindu Undivided Family could not be regarded as his separate property. It became the property of the Joint Hindu Family of Tolaram and his sons since the business prior to the partition of the Hindu Undivided family was assessed as joint family business and the partition deed signed by Tolaram and others itself contained a recital to that effect. [838 B-C] N.V. Rarendranath v. Commissioner of Wealth Tax, Andhra Pradesh, 74 I.T.R.190; followed. Chiranjilal v. Commissioner of Income Tax, (1965) 56 I,.T.R. P. 715 @ 722 referred to.
JUDGMENT
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1980 of 1972. Appeal by Special Leave from the Judgment and Order dated 26-5-1972 of the Assam & Nagaland High Court in I.T.R. No. 6 of 1968. B. B. Ahuja and S. K. Nandy, for the Appellant. T. A. Ramachandran and R. N. Sachthey, for the Respondent. 835 The Judgment of the Court was delivered by BEG, C.J.-The appellant, a Hindu Undivided Family, is before us by special leave through its Karta Tolaram. The statement of the case shows that Narmal, who died in the year 1945, left three sons : Srinivas, Nathmal and Tolaram. Narmal had carried on an Hindu undivided family business started roundabout 1925. It appears that the name of the business was changed to Nathmal Tolaram from 1936-37 and that the income of the business was assessed as Hindu Undivided Family income since then. The previous records do not seem to be very clear, but, from the year 1942 to 1950, the income of this business was certainly assessed as Hindu Undivided Family income. It was partitioned with effect from 6th April, 1949. After the partition, the business carried on at two places, Dhubri and Gauripore, was converted into a partnership business evidenced by a deed of partnership executed by the three brothers on 7th April, 1949. In this deed, it was admitted that the business bad been carried on previous to the partition as Hindu Undivided Family business. On 19th September, 1950, an application was made under section 25A of the Income-tax Act, 1922, to record and register the partition. This was done on 17th August, 1954. On 28th March, 1959, the firm of M/s. Nathmal Tolaram was dissolved and a new firm Nathmal Tolaram (Petrol Depot) came into existence. In the assessment year, 1959-60 Tolaram claimed that his share in the partnership business should be assessed separately as his individual income. His claim was rejected by the. Income-tax Officer, but was accepted in appeal. We then come to the relevant assessment year 1960-61, when Tolaram made a similar claim to separate assessment of income derived from the partnership business in petrol amounting to Rs. 21,746/-, The Income-tax Officer rejected this claim. The Appellate Assistant Commissioner also, on an appeal, after reviewing the entire set of facts and circumstances in the light of fresh materials which were available, affirmed the order of the Income-tax Officer rejecting the claim of the appellant. The Income-tax Tribunal and then the High Court also affirmed this position. The appellant, however, obtained special leave to appeal from the judgment of the High Court deciding the following question framed before it against the appellant :
" Whether on the facts and in the
circumstances of the case, the Tribunal was
justified in holding that the share income of
Rs. 21,746/- from Messrs Nathmal Tolaram
(Petrol Depot) was assessable in the hands of
the assessee family"? The position seems to be clear in law. The following passage in Mulla’s Hindu Law, Fourteenth Edition, at p. 278 has been quoted and relied upon by the High Court :
"228. Property jointly acquired.-(I) Where
property has been acquired in business by
persons constituting a joint Hindu family by
their joint labour, the question arises
whether the property so acquired is joint
family property, or whether 836
it is merely the joint property of the joint
acquirers, or whether it is ordinar y
partnership property. If it is joint family
property, the male issue of the acquirers take
an interest in it by birth (s. 221, sub. s.
(1). If it is the joint property of the
acquirers, it will pass by survivorship, but
the male issue of the acquirers does not take
interest in it by birth (s. 221, sub. s. 2).
If it is partnership property, it is governed
by the provisions of the Indian Partnership
Act, 1932, so that the share of each of the
joint acquirers will pass on his death to his
heirs, and not by survivorship.
(2) If the property so acquired is acquired
with the aid of joint family property, it
becomes joint family property.
(3) If the property so acquired is acquired
without the aid of joint family property, the
presumption is that it is the joint property
of the joint acquirers, but this presumption
may be rebutted by proof that the persons
constituting the joint family acquired the
property not as members of a joint family,but
as members of an ordinary trade partnership
resting on contract, in which case the
property will be deemed to be partnership
property". In the case before us the finding of fact was that the property was not acquired as partnership property under a contract, but the partnership business was originally prior to partition Hindu Undivided Family business. Hence, there was no room for applying the principle that members of a joint Hindu family had not acquired the business as members of a joint family but in a separate capacity as individual partners under a contract. The High Court rightly relied upon N. V. Narendranath v. Commissioner of Wealth tax, Andhra Pradesh,(1) where this Court bad observed :
"In the present case the property which is
sought to be taxed in the hands of the
appellant originally belonged to the Hindu
undivided family belonging to the appellant,
his father and his brothers. There were joint
family properties of that Hindu undivided
family when the partition took place between
the appellant , his father and his brothers
and these properties came to the share of the
appellant and the question presented for
determination is whether they ceased to bear
the character of joint family properties and
became the absolute properties of the
appellant. As pointed out by the Judicial
Committee in Arunachalam’s case (1957 A.C.
540) it is only by analysing the nature of the
rights of the members of the undivided family,
both those in being and those yet to be born,
that it can be determined whether the family
property can properly be described as "joint
property of the undivided family. Applying
this test it is clear, though in the absence (1) 74 I.T.R. 190. 837
of male issue the dividing coparcener may be
properly described in a sense as the owner of
the properties, that upon the adoption of a
son or birth of a son to him, it would assume
a different quality. It continues to be
ancestral property in his hands as regards his
male issue for their rights had already
attached upon it and the partition only cuts
oft the claim of the dividing coparceners.
The father and his male issue still remain
joint. The same rule would apply even when a
partition had been made before the birth of
the mate issue or before a son is adopted, for
the share which is taken at a partition by one
of the coparceners is taken by him as
representing his branch. Again, the ownership
of the dividing coparcener is such "that
female members of the family may have a right
to maintenance out of it and in some circums-
tances to a charge for maintenance upon it".
See Arunachalam’s case. It is evident that
these are the incidents which arise because
the properties have been and have not ceased
to be joint family properties. It is no doubt
true that there was a partition between the
assessee, his wife and minor daughters on the
one hand and his father and brothers on the
,other hand. But the effect of partition did
not affect the ’character of these-properties
which did not cease to be joint family
properties in the hands of the appellant. Our
conclusion is that when a coparcener having a
wife and two minor daughters and no son
receives his share of the joint family
properties on partition, such property in the
hands of the coparcener belongs to the Hindu
undivided family of himself, his wife and
minor daughter and cannot be assessed as his
individual property. It is clear that the
present case falls within the ratio of the
decision of this Court in Gowli Buddanna’s
case (60 I.T.R. 293) and the Appellate
Tribunal was right in holding that the status
of the respondent was that of a Hindu
undivided family and not that of an
individual". Learned Counsel for the appellant had relied on Chiranji Lal v. Commissioner of Incometax, U.P.,(1) where a Division Bench of the Allahabad High Court had observed (at p. 722)
"Once a partial partition is accepted as being
genuine and not a colourable or sham
transaction, the share of capital of each such
coparcener thereafter ceases to be joint
family asset and becomes his individual asset
de hors the family, and thereafter it is not
possible to say that the nucleus for the new
partnership business came from the Hindu
undivided family funds. The share incom e
derived by the investment of such funds in a
partnership business cannot be included in the
assessment of the Hindu undivided family,
unless it can be shown that the individual
members who derived the share income had
blended it with the income of the smaller
Hindu undivided family or were nominees or
benamidars for their family. No attempt has
been made by the department to (1) [1965] 56 I.T.R. p. 715 @ 722. 838
prove any such thing. There was thus no
material whatsoever for the finding of the
Tribunal that the nucleus in respect of the
capital which was duly divided in the books of
the firm after partial partition still
continued to be the nucleus of the funds
belonging to the larger or the smaller joint
family". In the case before us there is no difficulty in determining the character of any nucleus of divided property. The business prior to the partition of the Hindu undivided family was assessed as joint family business for a number of years without any protest by Tolaram. The partition deed signed by Tolaram and others itself contained a recital that the business was a joint family business. The finding of fact reached by the Tribunal that the business was, until partition, a joint family business could not be said to be unreasonable or perverse. If that be so, the share of Tolaram in the partnership which came into being on the partition of the Hindu Undivided Family could not be regarded as his separate property. It became the property of the joint Hindu family of Tolaram and his sons. This is the finding of fact, quite reasonably arrived at by the Tribunal, which the High Court had accepted. Consequently, me are unable to accept the arguments put forward by Mr. Ahuja with considerable persistence before us. We dismiss this appeal. But, in the circumstances of the case, we make no order as to costs. S.R.
Appeal dismissed. 839