SETH, J. - (1.) THE Income tax Tribunal, Allahabad, at the instance of the Revenue, has referred the following question for the opinion of this Court: "Whether, on the facts and in the circumstances of the case, the Tribunal was correct in holding that there was a partial partition in the HUF of Babu Lal Jiwan Ram and Co. under S. 171 of the IT Act ?" (I.T.R. No. 1123 of 1977)
(2.) IN the connected case the question referred is : "Whether, on the facts and in the circumstances of the case, the Tribunal was correct in deleting the addition of Rs. 15,636 from the assessment of the assessee's HUF in view of the acceptance of the assessee's claim of partial partition made under S. 171 ?" The matter related to the asst. year 1972 -73. One Babu Lal Kedia had a son, Jiwan Ram and a daughter, Jiwani Devi. Jiwan Ram had three sons, Krishna Kumar, Vijai Kumar and Mani Lal. Till the asst. year 1945 -46, Gangadhar Babu Lal was assessed in the status of an HUF which consisted of Babu Lal Kedia, his son, Jiwan Ram and the sons of Jiwan Ram. A partition took place in the HUF of Gangadhar Babu Lal between Babu Lal Kedia and Jiwan Ram Kedia and an order under S. 25A of the Indian IT Act, 1922, was passed on March 13, 1946. After the partition, Jiwan Ram Kedia was assessed in the status of an HUF. He died in 1949. After his death, his widow and the three sons formed the HUF. Krishna Kumar Kedia, one of the members of the HUF, separated from the family leaving the widow of Jiwan Ram Kedia, Vijai Kumar Kedia and Mani Lal Kedia as members of the HUF.
(3.) AFTER the partition in 1946, Babu Lal Kedia was assessed as an individual till the asst. year 1962 - 63. On November 5, 1961, Babu Lal Kedia, proprietor of Gangadhar Babu Lal, threw his properties in the common hotch -potch consisting of himself, his widowed daughter -in -law and three grandsons. The Department, however, did not accept the said HUF. In 1969 -70, the name of the business, Gangadhar Babu Lal was changed to Babu Lal Jiwan Ram and Co.. Babu Lal Kedia died on May 3, 1963. Mani Lal Kedia separated from the HUF on April 30, 1971. The remaining members, Vijai Kumar and the widow of Jiwan Ram continued in the HUF. Mani Lal Kedia went out after receiving a sum of Rs. 81,518.96 as his share in the entire business assets and other movables in the HUF. An application under S. 171 was filed claiming partial partition in the family of Babu Lal Jiwan Ram and Co. (HUF). The ITO rejected the application on the ground that the assets belonging to Babu Lal Jiwan Ram (HUF) had not at all been included while making the partition though the same belonged to the HUF and the constitution of both the HUFs was the same and consequently it could not be held that there was a partial partition or a complete partition. The order of the ITO was confirmed by the AAC in appeal. The AAC took the view that there was no documentary evidence to show that Mani Lal Kedia had separated from the HUF and the property credited in his name continued to belong to his HUF.;