LexNARENDRAKUMAR J. MODI versus COMMISSIONER OF INCOME TAX, GUJARAT II, AHMEDABAD
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A B 112 NARENDRAKUMARJ.MODI v. COMMISSIONER OF INCOME TAX, GUJARAT II, AHMED ABAD August 4, 1976 [H. R. KHANNA, V. R. KRISHNA IYER AND N. L. UNTWALIA, JJ.j Income Tax A ct. 1922-Section 25-A (3 )-Claims for partition and disrup- tion of the Hindu Undivided Family disallowed by /.T.0.-Appeal under ther Act filed againsl the orders of I.T.O. also dismissed-No referorce 1111der the Act clzal/e11gi11g the Tribu11c./'s order di.lmissinl!' the appeal was taken, but .rnbse• que111ly got a preliminary decree for partition, passed by the civil court duri11g the pe11dc11cy of the appeal-Whether the Income Tax Awhorities are bou11d by C Liie s1d>.,eq11.c111 partition decree of the civil court. D E F G H Right of ma11agement-Hi11du Law-Joi11t Hindu U11divided Whether a juliior member of the family can act m a karta ivit/1 tf1,, all the other members, if the senior member gives up his riplzt. Fami/y- co11se11t of Bapalal Purshottamdas Modi was the karta and head of a Hindu Undivided Family posse,sing many immovable properties and carrying on. business of various types including money lending. Bapalal had five sons, viz. Vadilal Ramanlal, Jayantilal, Gulabchand and Kanti!al; out of whom Ramanlal and Jayantilal predeceased him in 1933 and 1956 respectivelv and the app·~llant was one of the sons of Jayantilal. As per the general power of attorney dated 5.10-1948, executed by Bapalal in his favour, Gulabchand, the third son was acii'ng as a karta and wa~ filin0 the various tax returns without any objection what;oever by the other members of the Hindu Undivided Family. Bapalal relinquished all his rights in the joint family property on 22-lG-54 1~.aving the corpus of the joint family properties to his four surviving sons and Rajnikant, son of Ramanlal. All of them executed on 24-10-54, a memo of partition disrupting the Hindu Undivided Family and partitioning the properties. Irr the course of the proceeding' of' the income-tax af.sessment for the assessment year 1955-56 against the H.U.F. of Bapalal Purshottamlal Modi, an applica- tioh under s. 25A of the Income Tax. Act, 1922 claiming partition was made. The claim was disallowed by the I.T.O. by his order dat•ed 28-1-1960. Dur'ng the pendency of the appeal, a suit for partition was filed in 1961 and a decree for partition was obtained on June 30, 1965. The appeal to the Appellate Assistant Commissioner wa' dismissed on September 30, 1965 and the second appeal 10 the Income Tax Appellate Tribunal was also dismissed on March. 28. 1969. The appellants d'd not ask for a reference to the High Court, as provided under the Act, but went on filing the returns in respect of the· subs·equent assessment years. When the Income Tax Officer got attach·d 1h' entire amount i'n the Savings Bank A/c towards the tax liability bv an order dated May 12. 1970, the appellant filed a writ P'dition challenQ!ing the various orders passed in the proceedings under s. 25A for the assessment years 195$.66 to 1965-66 and the several attachment orders. Th·~ High Court dic1m'ssed the writ in /i111i11e, but granted a certificate under Art. 133(1)(b) of the Co'nstitu" ti on. Dismissing the appeal, the Court, HELD: (l) Sub section (3) of s. 25A provides that where an order accept· ing partition had not been passed in respect of a H'ndu Undivided Family assess- ed a<; undivided, such familv shall be deemed for the purpos-es of the Act to continue to be Hindu Undivided Family. The Income Tax Officers who had their own view to take, were not bound by the d1ecree, since in the instant case ihe partit'on preliminary decree came much later and there, wa~ no rPference under the Income Tax Act challenging the order of the Tribunal. [116 C-DJ (2) A junior member of the family can, with the consent of all the other members, act as a karta, if the senior' member give~ up his right. [116 El NARENDRA v. COMMR. INCOME TAX (Untwalia, .f.) 113 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 156 of 1971. From the Judgment and Order dated 19-10-1970 of the Gujarat High Court in Special Civil Appln. No. 1177 /70. B. R. L. Iyengar, S. K. Dholakia and R. C. Bhatia, for the appe!lant. B. B. Ahuja, for respondent No. 1. The Judgment of the Court was delivered by UNTWALIA, J. The appellant's writ petition filed in the High Court of Gujarat was dismissed in limine by a Bench of the High Court on October 19, 1970. The Commissioner of Income tax, Gujarat
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