Calcutta High Court
Commissioner Of Income-Tax vs Ram Gopal Thirani And Sons on 25 June, 1986
Equivalent citations: [1988]171ITR314(CAL)
JUDGMENT Dipak Kumar Sen, J.
1. In this application under Section 261 of the Income-tax Act, 1961, the Commissioner of Income-tax, West Bengal-XIII, seeks a certificate from us that Income-tax Reference No. 173 of 1978 (intituted Ram Gopal Thirani and Sons, Darjeeling v. Commissioner of Income-tax, West Bengal-I), where a judgment was delivered by this court on November 7, 1984, is a case fit for appeal to the Supreme Court.
2. The substantial question which, it is contended, arises in this case is whether, having regard to the provisions of the Hindu Succession Act, 1956, and the fact that the assessee being governed by the Mitakshara School of Hindu Law, his status would be that of an individual and not that of a Hindu undivided family relating to the properties and business inherited by him.
3. The relevant facts may be shortly noted. In the assessment years 1969-70 and 1971-72, Ram Gopal Thirani, the assessee, claimed that the properties which he had inherited from his father, Iswardas Thirani, deceased, were his personal properties and not joint properties of the Hindu undivided family of which he was the karta and the income thereof could not be assessed as income of the Hindu undivided family. The Income-tax Officer rejected the claim of the assessee.
4. On an appeal, the Appellate Assistant Commissioner also rejected the contentions of the assessee and confirmed the order of the Income-tax Officer. On further appeal before the Income-tax Appellate Tribunal, the Tribunal upheld the order of the Appellate Assistant Commissioner following its earlier order.
5. On an application under Section 256(1) of the Income-tax Act, 1961, the following question was referred as a question of law arising out of the order of the Tribunal for the opinion of this court:
"Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the share of income from property at Nohar in Rajasthan, the share of income from Thirani Building, Darjeeling, and the share of income from the firm of M/s. Maheshwari & Co. could be included in the assessment of the assessee in the status of a Hindu undivided family ?"
6. By its judgment dated November 7, 1984, this court in Income-tax Reference No. 173 of 1978 answered the question in the negative and in favour of the assessee. This court relied on a decision in the case of the brother of the assessee, where, on identical facts, the controversy was resolved in favour of the assessee. This case is Malchand Thirani and Sons v. CIT .
7. In the case of Malchand Thirani and Sons , an identical question was referred to this court. This court found that Iswardas, his three sons including the assessee and two unmarried daughters were the members of a Hindu undivided family. It was further found that this family at the material time stood divided and all properties were duly partitioned by a registered deed dated February 23, 1959. Under the deed of partition, Iswardas received properties which are in issue in this case and in respect thereof was assessed as an individual in respect of the income of these properties. On the death of Iswardas in 1963, the widow and the daughters relinquished their interest in the properties which had been allotted to Iswardas on partition. On these facts, it was held by this court that on the death of Iswardas, his individual properties had been inherited by the widow, the sons and the daughters in equal shares as tenants-in-common and not as joint tenants. The sons had no interest whatsoever in the properties during the lifetime of Iswardas and no part of the income from these properties could be included in the assessment of the sons in their status as Hindu undivided families.
8. The decisions of different courts were cited before us and it appears that the Allahabad High Court in the case of CIT v. Ram Rakshpal, Ashok Kumar [1968] 67 ITR 164 has differed from the decision of the Gujarat High Court in the case of CIT v. Dr. Babubhai Mansukhbhai . The Full Bench of the Madras High Court in the case of Addl. CIT v. P.L. Karuppan Chettiar [1978] 114 ITR 523 has followed the decision of the Allahabad High Court in the case of Ram Rakshpal [1968] 67 ITR 164 and has differed from the case of Dr. Babubkai Mansukkbhai .
9. In Dr. Babubhai Mansukhbhai , the facts were that a son inherited self-acquired properties of his father. The son was the karta of a joint Hindu undivided family of himself and his son. On these facts, it was held that as the property received by the son was ancestral, the son must hold the self-acquired property of his father in coparcenary with his own son even if the latter was born after the son inherited the property. This view is in consonance with the commentaries contained in Mulla's Hindu Law, 14th edition.
10. It appears that Section 6 of the Hindu Succession Act, 1956, was construed by the Madras High Court in Arunachalathammal v. Ramachandran Pillai, . This decision of the Madras High Court was affirmed by the Supreme Court by its judgment dated February 20, 1970, in Civil Appeal No. 115 of 1967 (). The Supreme Court observed that Section 6 of the Hindu Succession Act had no application to the properties received by the members of the joint family by partition. This judgment of the Supreme Court has been referred to in (Tirupurasundari Ammal v. Srinivasam Pillai) and is reported as Ramachandra Pillai v. Arunachalathammal in .
11. It appears that the controversy, if any, in the matter has been set at rest by the Supreme Court by the aforesaid observation.
12. In that view of the matter, this application cannot succeed. There will be no order on this application. There will be no order as to costs.
Monjula Bose, J.
13. I agree.