J.C.Verma, J. - (1.) THE petitioner has filed the present writ petition as a karta of the Hindu undivided family, i.e., Hindu undivided family against the certificate issued by the Tax Recovery Officer under Section 222 of the Income-tax Act, 1961. THE petitioner submits that for an individual liability of the petitioner, the property of the Hindu undivided family neither can be attached nor auctioned for recovery of the arrears of income-tax due from the petitioner, Prakash Chand Lunia, in his individual capacity. A copy of the notice has been attached as annexure A to the writ petition wherein it is mentioned that Prakash Chand Lunia (defaulter) had failed to pay the sum of Rs. 3,00,61,927 payable by him in respect of certificate No. 99/120 dated July 27, 1992, as forwarded by the Income-tax Officer, Ward-2, Ajmer, and the interest payable under Section 220(2) of the Income-tax Act, 1961, and, therefore, the Tax Recovery Officer had certified under Section 223(2) of the Act that the amount mentioned above is to be recovered from the said Prakash Chand Lunia. THE notice contained the specification of the property being house No. 10/265 situated at Niti Marg, Ajmer, belonging to the Hindu undivided family property and one shop situated in Naya Bazar. It is mentioned in annexure A that the notice is being issued under the said provisions of the Income-tax Act for the said Hindu undivided family so far as the share of Prakash Chand Lunia is concerned. On receipt of the notice, annexure A, the Tax Recovery Officer, Ajmer, issued an order for sale of the property, the aforesaid details of which have been mentioned in annexure B, i.e., a bungalow at Niti Marg, Ajmer, and a shop of Hindu undivided family property at Naya Bazar, Ajmer, presently let out to N. K. Jewellers, and three others. Annexure B was issued on February 14, 1995. THE petitioner is also aggrieved against the issuance of notice annexure B. Annexure B stated that for the amount mentioned in certificate No. 99/120, the amount now to be recovered was Rs. 6,00,09,341 after adding the tax, etc. It was mentioned in annexure B that public auction would be held on March 27, 1995. Details of the property as mentioned in the auction notice were given as under : 1. Prakash Chand Lunia, Hindu undivided family property bungalow at Niti Marg, Ajmer.
(2.) PRAKASH Chand Lunia, Hindu undivided family's property building (shop) at Naya Bazar, Ajmer, presently let out to the following ; 1. N. K. Jewellers (ground floor), 2. Rishab Saree Centre (first floor), 3. Sh. Sunil Kumar (first floor) and 4. Shri Chiranjilal Pandya (second floor). 2. The petitioner submits that he had been made liable for payment of tax in the individual capacity in regard to his business and against the assessment even though the appeals are pending but there is no authority with the respondents to issue notice under Section 222 or any other provisions of law for auction of the property belonging to the Hindu undivided family of which the petitioner is only a coparcener. Even in the annexures A and B as reproduced above, the respondents had stated in the notice of auction that the property belongs to the Hindu undivided family. The facts stated in the petition are not denied. The petitioner, as an individual, was assessed to wealth-tax from time to time and proper return of wealth was filed for the assessment year 1991-92 declaring the net wealth of the petitioner Rs. 3,39,620 and the net income of the petitioner was Rs, 24,633 for which the return was filed relevant for the assessment year 1993-94. The income of Rs. 16,600 was declared being the rent from the two properties. Prakash Chand Lunia is also an assessee as an individual. He too filed his return of the income declaring Rs. 96,980 as his income in respect of the accounting period from 1987 to 31st of March, 1989. For the year 1989-90, he was assessed for a total sum of Rs. 3,09,88,585 on March 25, 1992. He preferred an appeal and ultimately the Income-tax Tribunal, Jaipur Bench, Jaipur, vide its order dated December 29, 1993, in I. T. A. No. 1442/JP of 1992 allowed the appeal in part. The reference application against the order of the Tribunal was still pending at the time of filing of the appeal Prakash Chand Lunia as an individual was also levied penalty of Rs. 1,60,93,257 on September 30, 1994. The first appeal was dismissed on December 26, 1994. The second appeal is pending before the Income-tax Tribunal as stated in the petition. The petitioner submits that so far as the family--Hindu undivided family--as assessed above, that amount has since been paid but for the amount assessed against the petitioner, Lunia, in his individual capacity, the notice annexures A and B had been issued for sale of the property of the Hindu undivided family. It is submitted that a prohibitory order was passed in relation to the Hindu undivided family property wherein the petitioner was only a karta, i.e., Hindu undivided family property No. 10/265, Niti Marg, Ajmer, in regard to his share. It is the submission of the petitioner that so far as the shop situated in Naya Bazar is concerned, a total amount of Rs. 1,275 p.m. is being paid by the tenants and as far as the property at Niti Marg, Ajmer, is concerned, that is also rented out. It is submitted that the Hindu undivided family is still in existence and has not been partitioned as yet and unless and until a partition takes place, the share of its members or coparceners cannot be known or ascertained. The Hindu undivided family property of the coparcener even officially cannot be sold or attached for the reason that there is no specific share of any coparcener. The petitioner is challenging the impugned order only on the abovesaid submissions. In the reply filed by the respondents it is admitted that Prakash Chand was a defaulter in his individual capacity and according to the proclamation made vide annexure 2, it is submitted in the written statement that the undivided share of the said Prakash Chand Lunia is to be auctioned out of the coparcenary Hindu undivided family property. What is left to be determined in the present writ petition is for a default of an individual assessee, whether property of the coparcenary undivided and not partitioned, irrespective of the fact the member or a coparcener holding the coparcenary property, can be sold, attached or auctioned for reco very of an amount from a member who happens to be a coparcener but is liable for his individual assessment. What is the nature of the coparcenary property before partition and what is the procedure of partition ? As per the provisions of Hindu Law by Mulla, 15th edition, article 216 and article 235, undivided coparcenary property in Mitakshara law is defined as unity of ownership which is vested in the whole body of the coparcenery. The interest of the coparcener is fluctuating, capable of being enlarged by deaths in the family, liable to be diminished by births in the family and it is only a partition that such coparcener is entitled to a definite share. The right of each coparcener until a partition takes place consists of common possession and common enjoyment of the coparcenary property. There is a community of interest and unity of possession between all the members of the family and upon the death of any one of them the others may well take by survivorship. The rights of a coparcener as per article 235 : It is stated that no coparcener is entitled to any special interest in the coparcenary property, nor is he entitled to exclusive possession of any part of the property. There is community of interest and unity of possession as has been held in Naranbhai Vagjibhai v. Ranchod Premchand [1902] ILR 26 Bom 142,144 and in Katama Natchiar v. Srimut Rajah Moottoo Vijaya Raganadha Bodha Gooroo Sawmy Periya Odaya Taver [1865] 9 MIA 539, 543, 615. Article 216 and article 235 read as under : "216. Undivided coparcenary interest.--The essence of a coparcenary under the Mitakshara law is unity of ownership. The ownership of the coparcenary property is in the whole body of coparceners. According to the true notion of an undivided family governed by the Mitakshara law, no individual member of that family, whilst it remains undivided, can predicate, of the joint and undivided property, that he, that particular member, has a definite share, one-third or one-fourth. His interest is a fluctuating interest, capable of being enlarged by deaths, in the family, and liable to be diminished by births in the family. It is only on a partition that he becomes entitled to a definite share. The most appropriate term to describe the interest of a coparcener in the coparcenary property is 'undivided coparcenary interest'. The nature and extent of that interest is defined in article 235. The rights of each coparcener until a partition takes place consist in a common possession and common enjoyment of the coparcenary property. 235. Rights of coparceners.--(1) Community of interest and unity of possession--No coparcener is entitled to any special interest in the coparcenary property, nor is he entitled to exclusive possession of any part of the property. As observed by their Lordships of the Privy Council, 'there is community of interest and unity of possession between all the members of the family.' This has been reiterated by the Supreme Court in numerous decisions. (2) Share of income.--A member of a joint Mitakshara family cannot predicate at any given moment what his share in the joint family property is. His share becomes defined only when a partition takes place. As no member, while the family continues joint, is entitled to any definite share of the joint property, it follows that no member is entitled to any definite share of the income of the property. The whole income of the joint family property must be brought, according to the theory of an undivided family, to the common chest or purse, and there dealt with according to the modes of enjoyment by the members of an undivided family. It is competent to the manager to allot to any individual member a portion of the family property to enable him to maintain himself out of its income. Any savings out of the income and investments of such savings will be the separate property of the member. (2a) Joint possession and enjoyment--Each coparcener is entitled to joint possession and enjoyment of the family property. If any coparcener is excluded from joint possession or enjoyment, he is entitled to enforce his right by a suit. He is not bound to sue for partition." In CGT v. N. S. Getti Chettiar [1971] 82 ITR 599, the Supreme Court observed as under (page 603) : "Before proceeding to examine the relevant provisions of the Act, it is necessary to mention that according to the true notion of an undivided Hindu family, no individual member of that family, whilst it remains undivided, can predicate of the joint and undivided property, that he, that particular member, has a certain definite share, namely, a third or a fourth. All the coparceners in a Hindu joint family are the joint owners of the properties of the family. So long as the family remains joint, no coparcener can predicate what his share in the joint family is. His share gets determined only when there is a division of status or a division by metes and bounds. Therefore, it is not correct to assume that a coparcener in a Hindu joint family has any definite share in the family property, before its division."
(3.) SIMILAR was the effect in State of Maharashtra v. Narayan Rao Sham Rao Deshmukh [1987] 163 ITR 31 (SC), wherein it was observed as under (page 36) : "A Hindu coparcenary is, however a narrower body than the joint family. Only males who acquire by birth an interest in the joint or coparcenary property can be members of the coparcenary or coparceners. A male member of a joint family and his sons, grandsons and great grandsons constitute a coparcenary. A coparcener acquires right in the coparcenary property by birth but his right can be definitely ascertained only when a partition takes place. When the family is joint, the extent of the share of a coparcener cannot be definitely predicated since it is always capable of fluctuating. It increases by the death of a coparcener and decreases on the birth of a coparcener." As regards how 'the Hindu undivided family property is to be partitioned, the Supreme Court in ITO v. Smt. N.K. Sarada Thampatty [1991] 187 ITR 696, had held that the definition of "partition" in the Explanation to Section 171 of the Income-tax Act, 1961, does not recognise the partition of a Hindu undivided family even if it is effected by a decree of court unless there is a physical division of the property of the family and if the property is not capable of being physically divided, then unless there is division of the property to the extent it is possible ; otherwise, the severance of status will not amount to partition. The Supreme Court observed as under (page 700) : "The above definition of 'partition' does not recognise a partition even if it is effected by a decree of court unless there is a physical division of the property and if the property is not capable of being physically divided, then there should be division of the property to the extent it is possible ; otherwise, the severance of status will not amount to a partition. In considering the factum of partition for the purposes of assessment, it is not permissible to ignore the special meaning assigned to partition under the Explanation, even if the partition is effected through a decree of court. Ordinarily, a decree of a civil court in a partition suit is good evidence in proof of partition but, under Section 171, a legal fiction has been introduced according to which a preliminary decree of partition is not enough : instead, there should be actual physical division of the property pursuant to a final decree, by metes and bounds. The Legislature has assigned a special meaning to 'partition' under the aforesaid Explanation with a view to safeguard the interest of the Revenue. Any assessee claiming partition of the Hindu undivided family must prove the disruption of the status of Hindu undivided family in accordance with the provisions of Section 171, having special regard to the Explanation. The assessee must prove that partition effected by agreement or through a court's decree was followed by actual physical division of the property. In the absence of such proof, partition is not sufficient to disrupt the status of Hindu undivided family for the purpose of assessment of tax. Under the Hindu law, members of a joint family may agree to partition of the joint family property by a private settlement, agreement, arbitration or through court's decree. Members of the family may also agree to share the income from the property according to their respective shares. In all such eventualities, the joint status of the family may be disrupted but such disruption of family status is not recognised by the Legislature for purposes of income-tax. Section 171 of the Act and the Explanation to it, prescribe a special meaning to partition which is different from the general principles of Hindu law. It contains a deeming provision under which partition of the property of the Hindu undivided family is accepted only if there has been actual physical division of the property ; in the absence of any such proof, the Hindu undivided family shall be deemed to continue for the purpose of assessment of tax. Any agreement between the members of the joint family effecting partition or decree of the court, for partition cannot terminate the status of a Hindu undivided family unless it is shown that the joint family property was physically divided in accordance with the agreement or decree of the court." The Karnataka High Court in S.N. Santhalingam v. ITO [1980] 121 ITR 868, had held that the recovery proceedings could not be enforced against a person who was not named in the certificate as the defaulter merely on the ground that he was a partner of the firm. The court held that the term "defaulter" means the assessee mentioned in the certificate. Section 220 provides that when any amount, otherwise than by way of advance tax, specified as payable in a notice of demand under Section 156 is not paid within the time prescribed, the person to whom the notice of demand is issued shall be the assessee in default, and thus it is clear that the assessee who becomes a defaulter is the person to whom a notice of demand in the prescribed form is issued. So far as the case of the Allahabad High Court in Manohar Lal v. CIT [1988] 171 ITR 241, wherein the view taken by the Karnataka High Court was affirmed. It was also held by the Kerala High Court in P.K. Kunjamma v. TRO [1997] 227 ITR 852, affirming the aforesaid view. ;