P.L. Sonthalia vs Commissioner of Income Tax (Central)

Mitter, J.—The question referred to this Court u/s 66(1) of the Act is

In the facts and circumstances of the case, whether the Tribunal was right in holding that in view of the proviso to Section 30 of the income tax Act, the applicant was not entitled to claim in appeal against his own assessment that his real income was what remained after deduction of the share of commission diverted to his son and grand-son under the terms of the deed dated November 18, 1943.

The facts as taken from the statement of the case are as follows: The assessment year in question is 1952-53, the corresponding previous year being the calendar year 1951. The application for reference was made by P.L. Sonthalia and another as the executors and trustees to the estate of the late Radhakishan Sonthalia, who was the Assessee before the income tax Officer and has throughout been referred to as the Assessee. During the relevant previous year the Assessee was a partner of a firm styled Messrs. Radhakishan Sonthalia which was a registered firm. This firm had four partners, i.e., (i) the Assessee (the deceased) with -/3/6 share, (ii) Subhkaran Sonthalia with a similar share, (iii) Parameswarilal and Iswariprosad Sonthalia jointly having -/3/6 shares each and (iv) Mahaliram Sonthalia holding -/5/6 shares. The firm of Radhakishan Sonthalia used to receive from Messrs. Birla Brothers Limited one moiety of the managing agency commission payable by Kesoram Cotton Mills Ltd. In the assessment of the said firm for the assessment year under consideration, allocation was made to the Assessee u/s 23(5)(a) in respect of his -/3/6 share in the income of the firm and the amount was included in the total income of the Assessee in his personal assessment. The Assessee''s contention was that in the year 1943 there was a partition in his family as a result of which his only son Muralidhar Sonthalia, for self and as the natural guardian of his minor son, separated from him. It was claimed that by a deed of partition dated November 18, 1943, the -/3/6 share of Radhakishan Sonthalia in the managing agency commission of Kesoram Cotton Mills Ltd., was divided amongst the members of the family in the following manner :

(i) Sri Radhakishan Sonthalia 7 Pice (0-1-9)

(ii) Shri Muralidhar Sonthalia (for self and as Karta and natural guardian of his minor sons) 5 �,

(iii) Sitaram Sonthalia (son of Muralidhar Sonthalia) 1.3/4,

14 Pice (0-3-6)

On the strength of this the Assessee contended before the income tax Officer that his share of income in the managing agency commission was only Re. 0-1-9. This was rejected both by the income tax Officer as also by the Appellate Assistant Commissioner. At the hearing before the Tribunal a preliminary objection was raised on behalf of the Revenue to the effect that the second proviso to Section 30(1) of the income tax Act precluded the Assessee from raising this contention. It was argued that the extent of the share of the Assessee in the managing agency commission earned by the firm being a matter determined finally in the assessment of the firm itself, it was not open to the Assessee to appeal against the inclusion of the said share of the firm''s income in his own individual assessment. The Tribunal found that the application for registration for the relevant assessment year was signed by the Assessee himself as a partner claiming 0-3-6 share in the firm and there was nothing in the application to suggest that he had a different share. There was also nothing to show that he had signed the application in a representative character as the Karta of his family consisting of himself and others. The Tribunal further relied on the judgment of this Court in Mahaliram Sonthalia''s case (1958) 33 ITR 261.

On behalf of the executors to the estate of the assesee it was contended before us that what the income tax Officer has to determine is the ''real income'' of the Assessee and this is permissible only in the individual assessment. It was argued on the strength of the judgment of the Supreme Court in The Commissioner of Income Tax, West Bengal Vs. Kalu Babu Lal Chand, that it is always open to a partner in a registered firm to contend in his own assessment that the share of income of the partnership firm which he gets is not his individual income but belongs to himself along with others. This was further sought to be fortified by another judgment of the Supreme Court in Commissioner of Income Tax, Bombay City I Vs. Shoorji Vallabhdas and Co., where it was observed that what the income tax Officer has got to consider is not the hypothetical income but the income which has accrued or was received by the Assessee. Reliance was also placed upon two judgments of the Bombay High Court in Seth Motilal Manekchand Vs. Commissioner of Income Tax, Bombay North, , and Ratilal B. Daftari Vs. Commissioner of Income Tax, Bombay City II, .

On the other hand, the sheet anchor of the argument in support of the Revenue''s case was the judgment of this Court in Mahaliram Sonthalia v. Commissioner of income tax (Central), Calcutta (Supra), and Madanlal Jajodia v. Commissioner of income tax (Central), Calcutta (1964) 34 ITR 752.

Before considering these cases it will be useful to refer to the relevant provisions of the income tax Act. Under Sub-section (5)(a) of Section 23 when the Assessee is a registered firm and the total income of the firm has been assessed under Sub-section (1), (3) or (4) of the said section the income tax payable by the firm itself shall be determined and the total income of each partner of the firm including therein his share of its income, profits and gains of the previous years, shall be assessed and the tax payable by him on the basis of such assessment shall be determined.

u/s 26A of the Act an application may be made to the income tax Officer on behalf of any firm constituted under an instrument of partnership specifying the individual shares of the partners for registration for the purposes of the Act and by any other enactment for the time being in force relating to income tax or super-tax. Under Sub-section (2) the application shall be made by such person or persons and at such times and shall contain such particulars and shall be in such form and be verified in such manner as may be prescribed. Under the relevant rules the application for registration must be signed personally by all the partners (not being minors) in the firm as constituted at the date on which the application is made.

Section 30(1) of the Act provides for appeals against assessment under the Act. Under this Sub-section it is open to the Assessee to raise various objections including one as to the amount of income assessed u/s 23 or the amount of tax determined under the section etc. The second proviso to this Sub-section runs as follows:

Provided further that where the partners of a firm are individually assessable on their shares in the total income of the firm, any such partner may appeal to the Appellate Assistant Commissioner against any order of an income tax Officer determining the amount of the total income or the loss of the firm or the apportionment thereof between the several partners, but in respect of matters which are determined by such order may not appeal against the assessment of his own total income.

The net result seems to be that in the case of a registered firm the income tax Officer must compute first the total income of the firm, then the income tax payable by the firm itself and subsequently the total income of each partner of the firm including therein his share of the income, profits and gains of the previous year. The proviso to Section 30(1) precludes a partner of a registered firm from agitating against any order of the income tax Officer determining the amount of the total income or the loss of the firm or the apportionment thereof between the several partners in an appeal against his individual assessment. It follows that a partner cannot be allowed to canvass questions which are only relevant for computing the total income or loss of the firm and what proportion thereof is to be allocated to him unless he takes the matter up in appeal against the assessment order on the firm itself. In my view, it does not preclude a partner of a registered firm from saying that what he received as his share of the income of the firm was not subject to any reduction. For instance, in cases where contributions have to be made by the partners to the capital of the firm and a particular partner has to borrow money for that purpose he can legitimately ask for deduction of the interest payable on the amount borrowed. Again if he enters into a partnership with A, B and C in firm P on the strength of a previous agreement between himself and X, Y and Z to acquire capital to be contributed by him to the firm P in consideration of a certain share of the income of the firm there is no reason why in his individual assessment he should not be able to say that his apparent income is not his real income and that he should be assessed on the income he gets as a result of the prior agreement with X, Y and Z. The position would be otherwise if after having entered into an agreement with A, B and C to form firm P he makes an arrangement with X, Y, and Z to divide the share of income received from the firm P with X, Y and Z. There the case would be one where income accrues to him followed by a division on the basis of a subsequent arrangement. If the income of a partner in a registered partnership accrues to the partner in his own right and not by the assistance rendered by the loan of capital or with the help of assets belonging to others the income is his alone and the second proviso Section 30(1) would preclude any appeal against the determination of the quantum of income received from the firm in his personal capacity.

Broadly speaking, an arrangement for division of income of a registered firm in the hands of a partner after the agreement of partnership has been entered into cannot form the basis of a partner''s claim that the allocation of income to him as a result of computation u/s 23(5) is to be modified in the light of the said subsequent arrangement. But if he can show that he had entered into the partnership with contribution received from others agreeing to share his income from the firm with those others he can urge that only the portion of the income of the firm which comes to him as a result of the prior agreement with others should be included in the computation of his total income. The second proviso to Section 30(1) enables each partner to appeal to the Appellate Assistant Commissioner against any order of the income tax Officer determining the amount of the total income or the loss of the firm or allocation of the same between himself and the other partners in the firm''s appeal: he cannot appeal against such determination when his grievance is limited to the assessment of his own income. In other words, in any appeal against an order of assessment of his own total income a partner cannot agitate his complaints, if any, as regards the computation of the total income of the firm, the income tax payable by the firm itself, and the apportionment of the income or the loss amongst the partners. These are matters which can be agitated only in an appeal by a partner complaining against the assessment of the firm and the allocation of the income among the partners.

In Commissioner of income tax, West Bengal v. Kalu Babu Lal Chand (Supra), the question before the Supreme Court was whether remuneration received by an Assessee as a managing director of a company which was formed for the purpose of taking over a business carried on by the Assessee as representative of a joint Hindu family along with some outsiders should be assessed in his hands as an individual or should be assessed as the income of the Hindu undivided family. The Court pointed out that a Hindu undivided family cannot as such enter into a contract of partnership with another person or persons but the Karta of the family can enter into a partnership with outsiders on behalf and for the benefit of his joint family and when he does so, the other members of the family do not, vis-a-vis, the outsiders become partners in the firm. It was observed that

so far as the outsiders are concerned, it is the Karta who alone is, and is in law recognised as, the partner.... If for the purpose of contribution of his share of the capital in the firm the Karta brought in moneys out of the till of the Hindu undivided family then he must be regarded as having entered into the partnership for the benefit of the Hindu undivided family and as between himself and the other members of his family he would be accountable for all profits received by him as his share out of the partnership profits and such profits would be assessable as income in the hands of the Hindu undivided family.

Further on the Court said that

the question whether the amount received by the Karta by way of managing director''s remuneration in the one case or as his share of profits in the partnership business in the other case is his personal income or is the income of his Hindu undivided family cannot arise as between the company and the Karta as the managing director or between the outside partners and the Karta as a partner. Neither the company nor the outside partners, as the case may be, is or are interested in such a question. Such question can arise only as between the Karta and the members of his family and the answer to the question will depend on whether the remuneration or profit was earned with the help of joint family assets.

On the facts of the case, the Court came to the conclusion that the acquisition of the business, the floatation of the company and the appointment of the managing director being inseparably linked together and the joint family assets being used for acquiring the concern and for financing it the managing director''s remuneration received by the Assessee should be treated as the income of the Hindu undivided family.

It will be noted that the question of appealability u/s 30(1) of the Act or the application of the second proviso to the question was not before the Court but the decision goes to establish the proposition that the mere fact of a person entering into a partnership with others and agreeing to receive a certain share of the income of the firm is not conclusive on the question as to whether the income received by him from the firm is assessable in his hands as an individual and belonging to him alone.

Certain observations of the Supreme Court in Commissioner of income tax, Bombay v. Shoorji Vallabhdas and Co. (Supra) have to be borne in mind in such cases. There the Assessee firm was the managing agent of two shipping companies and was entitled to receive as commission 10% of the freight charged by the companies by way of remuneration as managing agents. Two several amounts became due to the Assessee as commission at the above rate between April 1, 1947 and December 31, 1947 and were credited in the books of account of the Assessee and debited to the managed companies. In November 1947 however the Assessee desired to have the managing agency transferred to two private companies and in this connection agreed in December, 1948, to accept 2 1/2 % as commission giving up 7 1/2% of its earnings. The Revenue sought to assess the amount at first credited in the books of the Assessee as income in its hands on the ground that commission at 10% had already accrued to the Assessee in the year of account and the subsequent agreement in December, 1948, could not save that portion from liability to income tax. The Court held that the subsequent agreement had altered the rate of commission in such a way as to make the income which really accrued to the Assessee different from what had been entered in the books of account. According to the Supreme Court this was not a case of a gift by the Assessee to the managed companies but an agreement to receive a lesser remuneration than what had been agreed upon. It was observed:

income tax is a levy on income. No doubt, the income tax Act takes into account two points of time at which the liability to tax is attracted, viz., the accrual of the income or its receipts; but the substance of the matter is the income. If income does not result at all, there cannot be a tax, even though in book keeping an entry is made about a hypothetical income, which does not materialise. Where income has, in fact, been received and is subsequently given up in such circumstances that it remains the income of the recipient, even though given up, the tax may be payable. Where, however, the income can be said not to have resulted at all, there is obviously neither accrual nor receipt of income, even though an entry to that effect might, in certain circumstances, have been made in the books of account.

In the light of these two decisions it appears to me that if the Assessee''s share of the managing agency commission payable by Messrs. Kesoram Cotton Mills Ltd., through Birla Brothers Limited came to him as the Karta of a joint Hindu family consisting of himself and his descendants the said income could not be treated in his hands as his individual income but should have been assessed in his hands as income of the Hindu undivided family. After 1943 when a partition is alleged to have taken place between the Assessee and his son Muralidhar, he could no longer have represented any joint Hindu family in the partnership of Radhakishan Sonthalia and successive applications for renewal of the registration of the partnership showing himself as a partner as before would go against his contention that from 1943 to 1951 he should have been treated as a partner representing the coparceners of a former Hindu undivided family.

It now remains to consider several other decisions cited at the bar. On behalf of the Revenue great stress was laid on the judgment of a Division Bench of this Court in Mahaliram. Sonthalia v. Commissioner of income tax (Central), Calcutta (Supra). There the Assessee Mahaliram Sonthalia was a partner along with three other persons in a firm called Benares Steel Rolling Mills which was registered as a firm for income tax purposes on the basis of a deed of partnership executed on December 24, 1943. Mahaliram Sonthalia did not include his share of the income from this firm in his return for personal assessment and contended that he was a partner not in his individual capacity but as a representative of another firm namely Radhakishan Sonthalia. The Assessee''s plea was rejected by the revenue; authorities and the question referred to this Court was whether the entire share of profits from the Benares Steel Rolling Mills could be included, in the individual assessment of Mahaliram Sonthalia. Chakravarti, C.J. who delivered the judgment of this Court held that by the application made u/s 26A of the Act, the partners including Mahaliram Sonthalia had themselves indicated what their own construction of the partnership deed was, because each of them had made the application in his personal capacity on the footing that he was a partner as an individual and that was the basis upon which registration of the firm was prayed for and allowed. According to the learned Chief Justice "the consequence of allowing registration on the representation thus made could only be the consequence laid down in Section 23(5)(a) of the Act." His Lordship noted that neither the deed of partnership nor the application for registration gave the slightest indication that the firm of Radhakishan Sonthalia had any interest as such firm in the Benares Steel Rolling Mills and it was perfectly clear that being itself a firm Radhakishan Sonthalia could not possibly be a partner of the Benares Steel Rolling Mills. His Lordship then went on to consider the effect of the second proviso to Section 30(1) of the Act and held that this proviso barred the raising of any plea which would strike at the apportionment of income in connection with the assessment of the Assessee''s own total income because that was the matter determined by the order passed in the assessment of the Benares Steel Rolling Mills. The argument as to the diversion of the income of Mahaliram Sonthalia by a superior title was turned down on the ground that the moment the share of the income from Benares Steel Rolling Mills was allocated to Mahaliram Sonthalia it became his income and liable to be included in his own total income and "an agreement by him with other persons regarding the rights to that income could only be a voluntary disposition of his income by him." His lordship negatived the argument that the share of the income from the Benares Steel Rolling Mills payable to the other persons of Radhakissan Sonthalia was an expenditure made by Mahaliram Sonthalia for the purpose of earning his own share of that income on the ground that the agreement was not one which had been forced upon Mahaliram and there was nothing to show that unless Mahaliram Sonthalia agreed to enter into that agreement he would not be able to become a partner of Benares Steel Rolling Mills.

In my view, this decision can only be given effect to in so far as it does not conflict with the decision of the Supreme Court in the case of Kalu Babu Lal Chand (Supra) and if the fact had been that Mahaliram Sonthalia was a partner of the Benares Steel Rolling Mills not in his individual capacity but as the Karta of a joint Hindu family the income receivable by Mahaliram Sonthalia would have been assessable as the income of a Hindu undivided family.

On behalf of the Assessee reliance was placed on the judgment of the Bombay High Court in Seth MotilaL Manekchand v. Commissioner of income tax, Bombay (Supra) and it was contended that the question to be considered was what the real income of the partners. In this case Motilal Manekchand and his son Maganlal constituted a joint Hindu family. These persons and Motilal''s wife were appointed managing agents of two textile mills. There was a partition of the family in July, 1948 and a document was drawn up later to that effect to record the partition. In the deed of partition there was a provision with regard to the managing agency commission to the effect that Motilal and Maganlal would be entitled to eight annas shares therein but they both undertook to pay Motilal''s wife two annas and eight pies share each out of their respective eight annas share of the managing agency commission. After partition of the family the father and the son constituted a partnership and acted as the managing agent of the two mills. They contended that the managing agency commission received by each of them was not the full 16 annas share but 16 annas less the amount which went to Motilal''s wife. There the Bombay High Court said that

in all cases of tax, what has got to be considered is what is the income of the Assessee, and when that question arises what has got to be considered is the real income and not any artificial income, and for the purpose of ascertaining that real income every part of the income which seem to be his income, if in fact it is not his income, if that part has been diverted and never constituted his real income, has got to be excluded.

The learned Judges went on to observe that what the parties

were dividing and distributing were the assets of the joint family and all the income received by the joint family and there cannot be the slightest doubt that under this deed of dissolution what the parties agreed to was that a portion of the managing agency commission should also be the income of Bhagirathibai. If that is the true nature of the transaction then it is clear that the income of the joint family property, to the extent that it was represented by the managing agency commission, was divided between the three members of the family..... It is true that if this managing agency commission constitutes the income of the partners, then the Taxing Department is not concerned with how the partners apply or allocate this income. But the whole question before us is looking to the true nature of the transaction, can it be said that the whole of the managing agency commission ever became the real income of the two partners, and in our opinion the answer must be in the negative.

Although no question as to the applicability of the second proviso to Section 30(1) of the Act was considered it is clear that what the High Court was considering was the true nature of the transaction and it was clear that the facts considered in entirety went to show that although the father and the son constituting the partnership firm were to be the managing agent of the two mills they were under an obligation and had simultaneously with the formation of the partnership entered into another agreement to share the managing agency commission with the mother. In that view of the matter the proviso to Section 30(1) did not stand in the way of the Assessee.

The case of Ratilal B. Daftari v. Commissioner of income tax, Bombay (Supra) does not carry the matter farther and it only illustrates the proposition that even though on the allocation of the income of a firm to several partners a particular sum might appear to be the income of one of the partners it was open to him to show that he was entitled to a deduction in regard to the diversion of his income which would have to be excluded to ascertain his real income.

This was a case of assessment of a registered partnership consisting of 16 persons who were to share the profit or loss in proportion to the capital contributed by each partner. The share of the income of the Assessee, who had contributed Rs. 25,000 towards the capital of the partnership of Rs. 3,45,000 was determined at Rs. 14,661 in accordance with the provision of Section 23(5)(a) of the Act. The Assessee contended that the whole of Rs. 14,661 did not belong to him but only two-fifths of that income on the basis of an agreement between himself and four other persons entered into on the same date on which the deed of the registered partnership was executed. This agreement provided that the five parties who had contributed diverse sums amounting to Rs. 25,000 were to share the profits and loss in proportion to their individual contribution and also mentioned that the terms and conditions of the registered partnership were to be applicable to and binding on them. Here again it should be noted that there is no question of the applicability of the second proviso to Section 30(1) and the High Court decided the case on the principle that in assessing a partner to income tax his real income must be found out.

In Cursetji J. Dubash Vs. Commissioner of Income Tax, Bombay City II, the question of the applicability of the second proviso to Section 30(1) did arise but in a different form. There the Assessee''s wife used to run a cinema theatre which she had taken on lease, in partnership with another person. On her death intestate leaving the Assessee and a minor daughter as her heirs a new agreement for running the theatre was entered into between the Assessee acting for himself and as father and natural guardian of the minor daughter and two other persons. This deed provided for the distribution of a share of the profits to the minor daughter as to any other partner and did not contain any saving clause in respect of the liability of the minor daughter for loss. There was nothing in the deed to indicate that she was admitted only to the benefits of partnership. The document was signed by the Assessee for himself and for the minor daughter in his capacity as father and natural guardian. For the assessment of the firm was made u/s 23(5)(b) of the Act and the total income of the firm was allocated amongst the partners. No appeal was filed against the assessment order of the firm determining the amount of total income or its allocation amongst the partners. In the assessment of the Assessee the minor daughter''s share of the profits in the firm was taken at a provisional figure, subject to rectification was included in the total income. The Assessee appealed against this and lost before the Appellate Assistant Commissioner. The Tribunal also dismissed his appeal on the preliminary objection that the Assessee was prevented by the second proviso to Section 30(1) of the Act from raising the question of assessment or apportionment of the firm''s income. It was held by the Bombay High Court that notwithstanding that he was precluded by the second proviso to Section 30(1) from challenging the determination of the total income of the firm and the allocation of the total income amongst its four partners including the Assessee and his minor daughter, he was not precluded from agitating in his individual assessment that the income of his minor daughter could not be included in his total income because she had not been admitted to the benefits of the partnership. The learned Judges pointed out that

The right conferred by the proviso was on an individual partner of a firm, in the event the partners were held to be individually assessable under Sub-section (5) of Section 23. The partners are individually assessable where a registered firm is assessed under the provisions of Section 23(5)(a). The partners of the unregistered firm are also individually assessable on their share in the total income of the firm when the income tax Officer treats the unregistered firm as a registered firm under Clause (b) of Sub-section (5) of Section 23. In the instant case, the income tax Officer has refused the renewal of registration but has treated the firm as a registered firm under Clause (b) of Sub-section (5). Now, the appeal that is contemplated under the second proviso to Section 30(1) is against the determination of the amount of total income or the loss of the firm and apportionment thereof between the several persons. Admittedly, the Assessee who has been treated as a partner of this firm has not appealed under the second proviso, though he had a right of appeal either against the determination of the total income of the firm, or the apportionment of that income amongst the persons. That being the position, and even if it is assumed that there was no validly constituted firm under the aforesaid deed of March 27, 1957, the Assessee would be precluded from contending that no firm was constituted under the deed of March 27, 1957. The Assessee would also be precluded from challenging the determination of the total income of that firm, and he would also be precluded from challenging the allocation of the total income of the firm as amongst its four partners-C.J. Dubash, the Assessee before us, the minor daughter and P.R. Irani and S.P. Irani.

According to the Bombay High Court this was not sufficient to hold, as the Tribunal had held that the Assessee had no right to file an appeal. The Court pointed out that the contention of the Assessee, apart from whether a valid partnership was constituted or not under the instrument, was in respect of the inclusion of the minor daughter''s share in his own income and the income tax Officer who dealt with the individual assessment case of the Assessee, had included the minor daughter''s share of income u/s 16(3) of the Act. In the result, the High Court came to the conclusion that it was necessary for the Tribunal to go into the question as to whether the amount of Rs. 11,000 which was considered to be the minor daughter''s share of the income should be included in the Assessee''s total income u/s 16(3)(a)(ii).

In my opinion, this decision is not of much help to the Revenue nor is the case of Madan Lal Jajodia v. Commissioner of income tax, Calcutta (Supra). There Madan Lal Jajodia claimed in appeal that he was a partner in several firms not in his individual capacity but as a representative of other firms and the division bench of this Court held that such an appeal was barred under the second proviso to Section 30(1).

In this case, the deed of partition dated November 18, 1943 shows that a partition was being effected between Radhakishan Sonthalia of the first part, Muralidhar for self and in his capacity as Karta and natural guardian of his minor sons of the second part and Sitaram Sonthalia son of Muralidhar of the third part. The document records that until separation by way of family arrangement the parties were jointly entitled as members of a joint Hindu family to various properties movable and immovable and interest in various businesses and it was agreed that the parties would be entitled to their respective shares in severalty notwithstanding any provisions in the agreement relating to the said share and income. From this it would appear that the Assessee Radhakishan Sonthalia was only a partner of the firm carrying on business in his name along with several other partners. It was this firm which was entitled to the managing agency commission. If Radhakishan Sonthalia the Assessee was representing his joint family in the firm carrying on business in his name he could not in law represent any joint family after the partition and the share of income of the firm which he was getting thereafter on the strength of the managing agency agreement as to commission must be treated as his individual income. It was not open to him to contend that the income received was not his real income. The Tribunal was right in holding on the facts of the case that when he had signed the application for registration as a partner claiming -/3/6 share in the firm and obtained registration on that basis he could not contend that his share should not be -/3/6 but was only 7 pice as a result of the partition which had taken place in 1943. On the facts of this case it must be held that the Assessee was precluded from contesting in his appeal against the assessment of his own total income that he was not a partner in his individual right but was a partner representing his erstwhile joint family which had been partitioned.

The answer to the question posed must be in the affirmative and against the Assessee who will pay the costs of this reference.

Masud, J.

I agree.