SHRIMAL, J. - (1.) IN relation to assessment year 1960-61 notice under Section 13 (2) of the Expenditure Tax Act, 1957 (to be hereinafter referred to as 'the Act'), was served on M/s. Gopichand B. Tholia, Gheewalon-ka-Rasta, Jaipur (to be referred to hereinafter as 'the assessee' ). INspite of the notice having been served, no return was filed. A notice under Section 15 (4) of the Act was issued on February 16, 1962 and was served on the assessee. A second notice for hearing on February 28, 1962, was again served on the assessee. Rajendra Kumar Tholia appeared for the assessee. Though no return was filed, yet an oral plea was raised that the joint Hindu family stood partitioned by an award, dated January 3, 1958.
(2.) THE assessee's attention was invited, by the Expenditure Tax Officer, Central Circle-II, New Delhi, to the fact that one of the family properties, named and styled as 'tholia Garden', was not devided among the family members in definite portions by metes and bounds. THE alleged partition, therefore, was not complete within the meaning of Section 19 (1) of the Act. THE assessee paid no head to the advice of the Expenditure Tax Officer and no return was filed. THE assessment proceedings were completed on March 29, 1962, under Section 15 (5) of the Act. THE total expenditure of the family and its members was estimated at Rs. 90000/- for the relevant assessment year. The assessee challenged the order of the Expenditure Tax Officer before the Appellate Assistant Commissioner of Income-tax. 'c' Range, New Delhi. The Appellate Assistant Commissioner, while deciding the appeal filed by the assessee, claiming partition within the meaning of Section 25-A of the Income-tax Act, 1922, relating to the same assessment year, held that the family had been partitioned on and from January 3, 1958. There being no joint family in the year previous to the assessment year, no expenditure tax could be levied on the family. The appeal was accordingly accepted and the order passed by the Expenditure Tax Officer was set aside vide order, dated September 13, 1966. The Revenue preferred and appeal before the Income-tax Appellate Tribunal (Delhi Branch 'a') and the same was registered as Expenditure Tax Appeal No. 10 of 1966-67. The Tribunal, after hearing the parties, upheld the order of the Appellate Assistant Commissioner of Income-tax vide order, dated May 14, 1968. A reference application was filed under Sec. 25 (1) of the Act by the Commissioner of Expenditure Tax, Rajasthan, Jaipur. It came up for disposal before the Tribunal on April 25, 1969. The Tribunal held that in its opinion a question of law had arisen out of its order. It, therefore, drew up a statement of the case and referred the following question of law to this Court: - "whether on the facts and in the circumstances of the case, the Appe-llate Tribunal erred in law in upholding the order dated 13-9-1966 of the Appellate Assistant Commissioner cancelling the assessment made under Sec. 15 (5) of the Expenditure Tax Act, 1957 ?" 6. Learned counsel appearing on behalf of the assessee as well as the Department agree that the question, as drafted by the Tribunal, correctly represents the controversy between them. The answer to the question depends upon true interpretation of the language of sub-sec. (1) of Sec. 19 of the Act. The language of Sec. 19 of the Act and Sec. 25 A of the Indian Income-tax Act, 1922 is identical in essential parts. It will be advisable to reproduce below both the sections in juxtaposition: Sec. 19 (1) of the Expenditure Act 1957. 19 (1 ). Where, at the time of making an assessment it is brought to the notice of the Expenditure Tax Officer that a partition has taken place among the members of a Hindu undivided family, and the Expenditure Tax Officer, after inquiry, is satisfied that the joint family property has been partitioned as a whole among the various members or groups of members in definite portions he shall record an order to that effect, and make assessments on the expenditure of the undi vided family as such for the assess ment year or years including the year relevant to the previous year in which the partition has taken place, and each member or group of members shall be liable jointly and severally for the tax assessed on the expenditure of the joint family as such. " Section 25 A (1) of the Indian Income- tax Act, 1922. 25a (1) where, at the time of making an assessment under Section 23, it is claimed by or on behalf of any member of a Hindu family hitherto assessed as undivided that a partition has taken place among the members of such family, the Income Tax Officer shall make such inquiry there into as he may think fit, and, if he is satisfied that the joint family property has been parti tioned among the various members or groups of members in definite portions be shall record an order to that effect Provided that no such order shall be recorded until notices of the inquiry have been served on all the members of the family. "
(3.) LEARNED counsel for the assessee argues that what Section 19 (1) contemplates is separation among the members of the family, which implies that the status of certain members undergoes a change. In other words, they cease to be members of the joint Hindu family. It is an elementary principle of Hindu Law that a mere declaration by a Notification to dissolve joint Hindu family tie is enough. Partition of the joint family property by metes and bounds is not a necessary requirement for its disruption. The requirement of law is that separating member's share in the property must be definite. Partition contemplated by Section 19 (1) of the Act is not necessarily a partition of all the properties by metes and bounds. In the alternative, it was argued that the words "partition as a whole among the various members or groups of members in definite portions", appearing in Section 19 of the Act, indicate no more than an ascertainment in clear terms. In the case of business, exclusion of other members could well be brought about by accepted mercantile practice of making appropriate entries in the books of accounts. Similar is the position in the matter of division of cash and ornaments. LEARNED counsel further argued that the expression "partition as a whole among the various members or groups of members in definite portions" does not mean actual partition of all the items by metes and bounds. If a running business could be partitioned by making entries in the account-books, an immovable property could also be partitioned in definite portions by defining respective shares. Learned counsel for the assessee further urges that where at the time of making assessment it is claimed, by and on behalf of the members of the Hindu family hitherto assessed as undivided, that a partition has taken place among the members of the family, the Expenditure Tax Officer is required to make inquiry in respect thereto. If the Expenditure Tax Officer is satisfied that separation of the members of the family has already taken place and that the joint family property has been partitioned among various members or groups of members, he has to record that the joint family no longer exists and its property is not taxable as such. Learned counsel then persuasively submitted that various decisions delivered by various High Courts on Sec. 25 A of the Income-Tax Act, 1922, could well be read with advantage in connection with interpreting the provisions of Sec. 19 of the Act, since the essential portions of both the sections are peri material to each other. Placing strong reliance on Rang Lal Modi vs. Commissioner of Income-tax (l), the counsel submits that on January 5, 1958, the partition had actually taken place among the members of the family and by the award, the immovable property belonging to the joint family, had been allotted in definite shares to different persons of the family. Only Tholia Garden, situated at Jaipur, had not been divided by metes and bounds, as the same was hardly capable of being so divided, Each party had been given 1/6th share in the Tholia Garden. It is not necessary that there should be physical division of all the properties of a joint family by metes and bounds. The fact that an item of joint family property had not been divided by metes and bounds would not by itself be enought to take the case out of the purview of Sec. 19 of the Act. There can be two types of cases firstly a family may divide between themselves some items only of its property either by metes and bounds or by allotting definite shares. However, in respect of the rest of the property it may still continue as undisputed and undivided. Secondly, the family may be completely disrupted in status and be no longer a joint Hindu family, though in respect of some items they may for one reason or the other continue to hold them jointly not as undivided Hindu co-parceners but as co-sharers under the ordinary law with definite separate interest. ;