DINESHCHANDRA HEMATLAL (SMALERHUF) vs. COMMISSIONER OF INCOEM TAX

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ITR/373/1983HC GujaratGJHC24011839198302 May 1998Author: HONOURABLE MR. JUSTICE R.K.ABICHANDANI,HONOURABLE MR. JUSTICE KUNDAN SINGH2 pages
AI SummaryRemanded

What did the High Court hold?

The High Court declined to answer the questions referred to it. Both the assessee and the revenue agreed that a similar course should be adopted as in other references (ITR 306/83 and 308/83) arising from the same partial partition. In those cases, the High Court had held that the facts on record were either incomplete or insufficient. Consequently, the High Court declined to answer the questions and remitted the matter back to the Tribunal for disposal in accordance with law after ascertaining the relevant facts. The present reference was disposed of accordingly, with no order as to costs.

What were the facts?

The assessee, Dineshchandra Hematlal (smaller HUF), is challenging an order of the Income Tax Appellate Tribunal (ITAT). The case concerns a partial partition of a larger HUF. The dispute revolves around whether the assessee could form a smaller HUF with his wife concerning property received on partition, specifically Rs. 2,39,061/-. The ITAT had previously made a decision on this matter, which is now under reference to the High Court. The procedural history indicates that similar questions arising from the same partial partition have been dealt with by the High Court in other references (ITR 306/83 and 308/83).

What were the issues?

The High Court was asked to decide the following questions of law: 1. Whether, on the facts and in the circumstances of the case, the Tribunal was justified in law in holding that on the partial partition of the larger HUF, the assessee could not form a smaller HUF with his wife in respect of the same property which was partitioned, amounting to Rs. 2,39,061/-? 2. Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that it was necessary to blend with or throw into the common hotchpotch of the HUF the property which he received on partition with his wife for the purpose of claiming it as HUF property? 3. Whether, on the facts and in the circumstances of the case, the Tribunal was justified in law in not following the decision of the Bombay Bench 'B' which relied upon the Allahabad High Court decision and in following a Special Bench decision? Assessee's contentions: Not recorded. Revenue's contentions: Not recorded.

Which sections of the Income-tax Act were involved?

Section 256(1)

AI-generated summary — verify with the full judgment below

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

INCOME TAX REFERENCE No 373 of 1983

For Approval and Signature:

Hon'ble MR.JUSTICE R.K.ABICHANDANI and MR.JUSTICE KUNDAN SINGH ============================================================ 1. Whether Reporters of Local Papers may be allowed to see the judgements?

2.

To be referred to the Reporter or not?

3.

Whether Their Lordships wish to see the fair copy of the judgement?

4.

Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder?

5.

Whether it is to be circulated to the Civil Judge?

-------------------------------------------------------------- DINESHCHANDRA HEMATLAL (SMALERHUF) Versus COMMISSIONER OF INCOEM TAX -------------------------------------------------------------- Appearance: MR KC PATEL for Petitioner MR MANISH R BHATT for Respondent No. 1

--------------------------------------------------------------

CORAM : MR.JUSTICE R.K.ABICHANDANI and MR.JUSTICE KUNDAN SINGH Date of decision: 02/05/98

ORAL JUDGEMENT (Per R.K.Abichandani,J) The Income Tax Appellate Tribunal has referred the following questions for the opinion of this court under Section 256(1) of the Income Tax Act, 1961. 1. "Whether, on the facts and in the circumstances of the case, the Tribunal was justified in law in holding that on the partial partition of the larger HUF the assessee could not form a smaller HUF with his wife in respect of the same property which was partitioned i.e. Rs.2,39,061/-. ?"

2.

"Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that it was necessary to blen with or throw into the common hotch potch of the HUF the property which he received on partition with his wife for the purpose of claiming it as HUF property."

3.

"Whether, on the facts and in the circumstances of the case, the Tribunal was justified in law in not following the decision of the Bombay Bench 'B' which relied upon the Allahabad High court decision and in following Special Bench decision?"

2.

Both the learned Counsel appearing for the parties stated before us that in view of the decision of this court in ITR 306/83 and 308/83 wherein similar questions of law arisen out of the same partial partition of the bigger HUF as on 24.10.96 holding that the facts placed on record were either incomplete or insufficient and therefore declining to answer the question and remanding the matter to the Tribunal for disposal in accordance with law after ascertaining the relevant facts, similar course should be adopted in the matter. It was also pointed out that even in ITR No.313/83 dated 29.11.96 and the present reference which was on board alongwith that Reference appears to have been left out through oversight. In view of this request we decline to answer the questions referred to this court and remit the matter to the Tribunal for disposal in accordance with law after ascertaining the relevant facts.

3.

This reference stands disposed of accordingly with no order as to costs.

***** jitu

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