ESTHURI ASWATHIAH Vs. COMMISSIONER OF INCOME TAX
LAWS(KAR)-1966-3-18
HIGH COURT OF KARNATAKA
Decided on March 15,1966

ESTHURI ASWATHIAH Appellant
VERSUS
COMMISSIONER OF INCOME-TAX, MYSORE Respondents


Cited Judgements :-

COMMISSIONER OF INCOME TAX VS. KAPOOR CHAND SRIMAL [LAWS(APH)-1971-6-22] [REFERRED TO]
COMMISSIONER OF INCOME TAX VS. KAPOORCHAND SHRIMAL [LAWS(APH)-1972-6-3] [REFERRED TO]


JUDGEMENT

Somnath Iyer, J. - (1.)THIS is a reference under section 66(1) of the Income-tax Act, 1922, and the question of law referred to us reads :
"Whether the assessees are entitled to an order under section 25A(1) of the Income-tax Act of 1922, in pursuance of their claim of partition of the basis of the release deed dated June 13, 1960 ?"

(2.)IT is seen from the statement of the case that the two assessees who were members of a Hindu Joint family made a partition of certain properties under the partition deed executed on March 29, 1957. In proceedings where the Income-tax Officer proposed to make an assessment in regard to the assessment year 1953-54, an application was presented by the assessees under section 25A of the Indian Income-tax Act, 1922, which will be referred to as "the Act", for an order that there was a partition between them under that partition deed. The Income-tax Officer declined to make that order and his finding that there was no partition was confirmed by the Appellate Assistant Commissioner of Income-tax and the Appellate Tribunal. Eventually in I. T. R. C. No. 16 of 1961 this court explained by it order made on April 18, 1962, that the assessees were not entitled to the order which they sought since the partition on which they depended was incomplete. But this court observed :
"Admittedly that partition is incomplete. Certain reliefs granted in favour of the assessee as the 'karta' of his branch of the family were not taken into consideration while partitioning the joint family properties. They also did not take into consideration certain liabilities imposed on the assessee and these liabilities were also not divided."

That matter concluded in that way.

When the Income-tax Officer was making an assessment with respect to the assessment year 1956-57, there was again an application presented by the assessee for an order under section 25A. The assessment concerned the joint family composed of the father, Esthuri Aswathiah, and the son, Sriramiah. It was stated in the application presented by them on June 13, 1960, that there was a release deed executed by the son in favour of his father under which a vacant land and a sum of Rs. 3,000 was taken by the son who relinquished in favour of his father all his rights in all properties which formed the subject-matter of the litigation between Aswathiah and his brother, Ramakrishniah. Alluding to the decision of the High Court on the Previous occasion, the Tribunal observed thus in the statement of the case :

"The High Court rejected the claim on the ground that certain properties which were the subject-matter of litigation between Esthuri Aswathiah and his brother, Esthuri Ramakrishniah, had not been divided between Esthuri Aswathiah and his son, Sriramiah."

(3.)IT is obviously for this reason that by the release deed Sriramiah relinquished all the properties which were likely to fall to the share of the family consisting of himself and his father in the litigation which was continuing between Aswathiah and his brother, Ramakrishniah.
The supposition on which their application was not under section 25A was that even the partition made in the year 1957 was for another reason incomplete by reason of the exclusion of the properties which formed the subject-matter of the litigation between the two brother. But the partition had become complete and full by reason of the release deed executed by the son in favour of the father on June 13, 1960.



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