M.C.AGARWAL, J. - (1.) THE Tribunal, Delhi Bench 'D' has, under S. 256(1) of the IT Act, 1961, referred the following questions stated to be of law and to arise out of its order dt. 24th Nov., 1978 passed in ITA Nos. 1112 and 1113 (Del) of 1977 -78 for the asst. year 1972 -73 for the opinion of this Court : "1. Whether, on the facts and in the circumstances of the case, the Tribunal was legally correct in holding that the order of the CIT under S. 263 was bad in law and was without jurisdiction, as no notices were served on the other members of the family ? 2. Whether, on the facts and in the circumstances of the case, the Tribunal was legally correct in holding that the partial partition between the two groups effected on 1st Jan., 1971, was valid under the Hindu Law ?"
(2.) WE have heard Shri Shambhoo Chopra, the learned counsel for the CIT and Shri Neeraj Agarwal, the learned counsel for the assessee -respondent. We may mention that similar questions were referred to this Court for the asst. yrs. 1973 -74 and 1974 -75 in IT Ref. No. 303 of 1980 which has been decided by this Court vide order dt. 1st Dec., 1999, answering question No. 2 in the affirmative and declining to answer question No. 1 as it was merely consequential. Therefore, the questions should normally be answered accordingly in the present case also that relates to the asst. year 1972 -73. However, Shri Shambhoo Chopra argued the matter is some details and relied upon two judgments of the Supreme Court. Therefore, we will dispose of this reference by a more detailed order.
(3.) THERE was an HUF in the name of Brahm Swarup and Sons of which Lala Brahm Swarup was the Karta. The said HUF was a partner in a firm Sharwan Cold Storage & General Mills. On 1st Jan., 1971, a partial partition was effected in the HUF with respect to its interest in Sharwan Cold Storage & General Mills. The partition is mentioned in the memorandum of partition as under : "That on 1st Jan., 1971 Lala Brahm Swarup effected a partial partition in respect of the share capital rights in the share of profits and in the reserves of the firm M/s Sharwan Cold Storage and General Mills hereinbefore owned by Joint Hindu Family through Lala Brahm Swarup as under : Parties Right in the profits and reserves hereinbefore owned by the HUF standing Capital allotted standing with M/s Sharwan Cold (Sd/ - L. Brahm Swarup and Govind Swarup) (Sd/ - Smt. Ved Vati Swarup and Sharwan Kumar Swarup) Group No. 2 ;