Decided on February 27,1982



V.P. Elhence, Judicial Member - (1.) THESE two appeals filed by the assessee arise out of the separate orders, both dated 25-6-1981 of the AAC, Special Range, Kanpur.
(2.) The assessee-HUF, by means of an application dated 31-3-1978, required the ITO to recognise the partial partition of the HUF which was said to have been effected on 30-6-1976 (i.e., first day of the previous year under consideration) between its members with reference to an amount of Rs. 2,01,000 out of the fixed deposits of the HUF amounting to Rs. 2,61,000 in the Allahabad Bank, Generalganj, Kanpur. Out of the total value of the 7 fixed deposit receipts amounting to Rs. 2,01,000, the value of one of the fixed deposits to the extent of Rs. 21,000 was set apart to provide for the marriage and other expenses of the minor daughter, Km. Vinita Dixit. The rest of the deposit amounting to Rs. 1,80.000 were divided equally between the karta, his wife and his minor son. The HUF consisted of Shri Kailash Kumar Dixit, the karta, his wife, Smt. Asha Dixjt, his minor son, Vinay Kumar Dixit and his minor daughter. Km. Vinita Dixit. A deed dated 30-6-1976 of partial partition was also executed which was submitted before the ITO The ITO took the view that the partial partition claimed by the assessee was invalid because there were only two coparceners and the son being a minor was not in a position to give his consent. He was also of the view that Shri K.K. Dixit, the father, being himself the karta, such consent was meaningless. Accordingly, he rejected the claim of partial partition. The assessee being aggrieved came up in appeal before the AAC. Firstly the AAC held that although a provision for expenses on marriage could be made in the case of a complete partition of the HUF, it could not be made in the case of a partial partition. He was of the view that the application regarding expenses of marriage was that of the joint family property and, therefore, the portion set apart for the marriage expenses of the minor daughter continued to be a part of the joint family property. Next the learned AAC took the view that since the father was also the natural guardian, the consent given on behalf of the minor son was meaningless since he was also exercising his patria potestas. He, therefore, upheld the rejection of the partial partition. The ITO had also completed the assessment of the assessee-HUF by treating the entire income of the HUF as if no partial partition has taken place. The said assessment was also, accordingly, confirmed by the AAC in appeal.
(3.) AGAINST both these orders, the assessee-HUF has come up in appeal before us. In the appeal against the rejection of the claim for partial partition, Ground No. 8 taken up by the assessee was that the deeming effect of Section 171 does not warrant the charge of tax on income from the property which has ceased to be owned by the HUF consequent upon its partition. However, at the time of hearing this issue was not pressed before us and, therefore, it no longer survives for our consideration. In the appeal arising out of the assessment order passed by the ITO, the assessee had taken Ground No. 2 of appeal to the effect that Section 171 does not warrant the charge of tax on unreal income derived from property which, pursuant to the partial partition, ceased to be owned by the HUF. However, at the time of hearing this ground of appeal was also not pressed before us. Therefore, it no longer survives for our consideration.;

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