T S SRINIVASAN Vs. COMMISSIONER OF INCOME-TAX MADRAS

JUDGEMENT

(1.) THE assessee and his brothers along with their father originally constituted a joint Hindu family. In the year 1929 there was a partition of their interest in a company an important item of property belonging to the family under which the assessee obtained 25 shares, each valued at Rs. 1000. This asset enabled the assessee, in course of years to acquire considerable properties. Besides, the assessee was himself employed in one capacity or another in the company in respect of which he had been receiving salaries. The income from the properties as well as the remuneration received by the assessee were his separate income after 1929 and the assessee was accordingly assessed to tax as an individual. On 1112-1952 a son was born to the assessee. In submitting his return for the assessment year 1952-53 (sic) (the year of account being from 1-4-1952 to 31-31953)the assessee stated that he should be assessed in regard to his salary alone as an individual but the rest of his income, namely, that received from his properties which were acquired out of the nucleus of what he obtained under the family partition, should be assessed as that of a Hindu undivided family of which he and his son formed members. His case was that as his son was born on 11-12-1952, he should be deemed to have been in his mother's womb at least 280 days before the actual date of his birth and that, therefore, from the beginning of the year of account there should be deemed to have been in existence a Hindu undivided family consisting of himself and his son owning properties referred to earlier. The Income-tax Officer did not accept the assessee's contention. He levied assessment on the assessee for the entire income as an individual upto the date of the actual birth of the son, namely, 11-12-1952. From 11-12-1952 to the end of the year of account the officer recognised the assessee as the kartha of a Hindu undivided family as well and completed the assessment on that basis. The assessee appealed to the appellate Assistant Commissioner; that appeal and a further appeal to the Tribunal met with no success. The following question was thereupon referred to this court for opinion.

(2.) LET us take an illustration : suppose a Hindu has been assessed as an individual and after the assessment is over, a son his born to him at a time from which it could be computed that the son was actually begotten something during the year of account. If the contention of the assessee were to be accepted, the entire assessment proceedings would be improper as the child should be deemed to be a member of a Hindu undivided family even during the time when it was in its mother's womb; the assessment will have to be set aside and a re-assessment made on the appropriate units for the relevant periods during the year of account. But there is no provision of the Act for reopening the assessment. Then again if the child that is born is a female child there would be no coparcenary at all; the assessment would then be proper. If the argument of the assessee were to be accepted there could only be a conditional assessment whenever a sole surviving hindu coparcener's wife is enciente during the close of the year of account, it being valid if the child that is born is a female and invalid if male. In other words all assessments made before the actual birth of the child would be conditioned in its validity on their being no son born to the assessee. There is no warrant for such a conditional assessment under the Act.

(3.) IN our opinion what is contemplated by the Income-tax Act by the term "hindu undivided family" is a family in its ordinary sense, namely, where there is more than one member in actual existence during the year of account. A son who has not come into existence will not be a member of the family for the purpose of levy and assessment of income-tax. We answer the question referred to us in the affirmative and against the assessee who will pay the costs of the department. Advocate's fee Rs. 250/ -.