The Commissioner of Income Tax vs B.S. Sundaravadivel Mudaliar and Sons

N.V. Balasubramanian, J.—All these appeals are filed u/s 260A of the Income Tax Act, 1961 (hereinafter referred to as ''the Act'') by the

Revenue and the assessment years involved are 1988-89, 1989-90 and 1990-91 and the issues that arise in all tax case appeals are the same and

hence, all the tax case appeals are disposed of by this common judgment.

The respondent is a firm (hereinafter referred to as ''the assessee'') consisting of five partners, namely, B.S. Anandan, B.S. Arunagiri, B.S.

Narayanan, B.S. Velayutham and B.S. Guruswamy all sharing profit or loss at 20% each in the partnership firm. All the partners were members of

the erstwhile Hindu Undivided family of M/s. B.S. Sundaravadivel Mudaliar. The Hindu Undivided family deposited the family funds in the

assessee firm a sum of Rs.1,80,000/- as a deposit. There was a partial partition in the family in March, 1979 in respect of the deposit of

Rs.1,80,000/- and the same was divided among the members and each coparcener was allotted a sum of Rs.36,000/- and the sums were held in

deposits in separate folios in the assessee firm and interest was credited to the depositors.

Though the assessment years with which we are concerned are 1988-89, 1989-90 and 1990-91, the dispute seems to have started even from

1981-82 onwards as the assessee firm claimed in the assessment proceedings that the interest paid to the divided coparceners in the Hindu

Undivided family should be allowed as deduction in the computation of its business income. The assessing officer, however, held that the partial

partition effected after 31.12.1978 was a nullity under the provisions of section 171 of the Act and the assessee firm had paid interest to the

coparceners in their individual capacity as the account books of the assessee firm showed that the interest was paid to the coparceners in their

individual capacity and not to the Hindu Undivided family as a whole. He therefore came to the conclusion that the assessee firm had paid interest

to the divided members of the family, who happened to be the partners in the firm, and held that the interest paid by the assessee firm to the

partners was inadmissible u/s 40(b) of the Act and liable to be added to the total income of the firm. The assessing officer completed the

assessment for all assessment years in question in the same manner.

The assessee carried the matter in appeal before the Commissioner of Income Tax (Appeals) and the commissioner of Income Tax (Appeals)

held that the partial partition was de-recognised and the interest payments made by the firm must be held to have been paid to the joint family and

therefore the provisions of section 40(b) of the Act have no application. The Commissioner of income tax(Appeals) allowed the appeals preferred

by the assessee for various assessment years in question.

The Revenue challenged the orders of the Commissioner of Income Tax (Appeals) before the Appellate Tribunal and the Appellate Tribunal,

following its earlier order rendered for the assessment years 1981-82, etc. held that the interest payments made by the firm were not liable to be

disallowed u/s 40(b) of the Act on the score that the interest payments were made by the firm to the Hindu Undivided family and therefore, such

payments would not attract the disallowance u/s 40(b) of the Act. It is against the order of the Appellate Tribunal, the Revenue has filed appeals

and the appeals have been admitted. In so far as T.C. No. 463 of 1999 is concerned, the following substantial question of law has been framed:-

Whether the Appellate Tribunal is right in law in holding that the interest payment of Rs.1,38,940/-made by the assessee to its partners is not hit

by section 40(b) of the Income Tax Act, 1961?

It is relevant to mention here except the amount of interest which varies in each appeal, the question framed is common in all the appeals.

These appeals came up for hearing and the matter was adjourned to ascertain from the counsel for the Revenue whether any reference filed by

the Revenue against the earlier order of the Appellate Tribunal and in spite of several opportunities granted to the counsel for the Revenue, she

submitted that she is not able to get necessary information from the Income Tax Department. We are amazed to find that the Commissioner of

Income Tax, Trichy is not co-operating with the counsel for the Revenue in furnishing the necessary information when the Court has directed the

Commissioner of Income Tax, Trichy to furnish the necessary information.

Be that as it may, Mrs. Pushya Sitharaman, learned senior standing counsel for the Revenue submitted that though under sub-section (9) of

section 171 of the Act, the partial partition effected after 31.12.1978 is null and void, the effect of declaring the partial partition as null and void is

only for the purpose of assessment of the joint family as if no partition had taken place, but the partial partition effected would continue to govern

the parties and hence, the firm had paid the interest payments only to the individual partners attracting the provisions of section 40(b) of the Act.

Learned senior standing counsel submitted that the way in which the assessee maintained the accounts, particularly the interest folio accounts

clearly shows that the assessee firm has paid the interest to the divided members and therefore, the interest was factually paid to the members of

the family and not to the joint family attracting the provisions of section 40(b) of the Act. Learned counsel submitted that the effect of declaring the

partial partition as null and void is limited for the purpose of making assessment on the joint family, but the partial partition effected is not set aside

and therefore the assessee firm has actually paid the interest to the partners in their individual capacity.

Mr. V.D. Gopal, learned counsel for the assessee, on the other hand, submitted that since the partial partition effected after 31.12.1978 is

declared as null and void, the joint family shall be deemed to continue for the purpose of the Income Tax Act and in the absence of any order

recognising the partition in the joint family, the Hindu Undivided family shall continue and it shall also continue for the receipt of income from the

assessee firm. He also submitted that for the purpose of Income Tax Act, it must be taken that the assessee firm has paid interest to the joint family

and not to the partners. Learned counsel relied upon the decision of the Supreme Court in the case of Kalloomal Tapeswari Prasad (HUF),

Kanpur Vs. Commissioner of Income Tax, Kanpur, . He also referred to the Board''s circular issued at the time of introduction of section 171(9)

of the Act. Learned counsel therefore submitted that the effect of the deeming provision is to imagine as real the consequences and incidents as if

the partial partition had not taken place. Learned counsel also submitted that the grounds of appeal raised by the Revenue clearly show that out of

five partners, only two partners were bachelors during the relevant period and with reference to other three persons, it is admitted that they were

married and therefore when a property was allotted to the joint family at the time of partition, it must be held that the property was held by them as

members of the Hindu Undivided family.

We have carefully considered the submissions of Mrs. Pushya Sitharaman, learned senior standing counsel for the Revenue and Mr. V.D.

Gopal, learned counsel for the assessee. We are of the view, a reading of section 171(9) of the Act clearly shows that a partial partition effected in

a Hindu Undivided family after 31.12.1978 is held to be null and void and clause (b) of sub-section (9) of section 171 provides that the joint family

shall continue to be assessed under the Act as if no partial partition has taken place. Clauses (c) and (d) also provide that each member or group

of members of the family immediately before the partial partition shall be jointly and severally liable for any tax or any other sum payable under the

Act by the family and the several liability of the members with reference to the liability of the family shall be computed according to portion of the

joint family property allotted to the members concerned in the partial partition.

The constitutional validity of the section 171(9) of the Act was the subject matter of consideration before the Supreme Court in Union of India

and Others Vs. M.V. Valliappan and Others, and the Constitution Bench of the Supreme Court, after noticing the provisions of section 171(9) of

the Act held as under:-

The effect of the aforesaid sub-section is that for the purposes of Income Tax partial partitions taking place on or after January 1, 1979, are not

to be recognised. If a partial partition has taken place after the cut-off date no inquiry as contemplated under sub-section (2) by the Income Tax

Officer shall be held. Even if the inquiry is contemplated and the finding is given, it would be treated as null and void. In this view of the matter, the

contention raised in some of the petitions by learned counsel for the respondents that partial partition took place on April 13, 1979, and that in the

assessment year it was recognised and benefit was given to the assessee, has no significance in view of the crystal clear language used in the sub-

section that partial partition taking place after the cut-off date is not to be inquired into and if inquired the findings would be null and void. Such a

family is to be assessed under the Act as if no partial partition has taken place.

The Supreme Court has held that the effect of section 171(9) of the Act to treat a partial partition taking place on or after January 1, 1979 as null

and void for the purpose of Income Tax Act and it is not confined only for the purpose of making assessment on the joint family.

We are also unable to accept the submission of the learned counsel for the Revenue that when the partial partition has been declared null and

void, it should be limited only for the purpose of assessment of the joint family and it would not extend to other purposes like, claiming deduction

or grant of exemption which is available under other provisions of the Income Tax Act. We hold that once the partial partition is declared to be null

and void, it is null and void for the purposes of the Income Tax Act and the interest paid by the firm, though to the erstwhile members of the joint

family, should be treated as if the interest was paid to the joint family.

The Supreme Court in Kalloomal Tapeswari Prasad (HUF), Kanpur Vs. Commissioner of Income Tax, Kanpur, has held that as long as a

finding is not recorded u/s 171 of the Act holding that a partial partition had taken place, the Hindu Undivided family should be deemed for the

purpose of the Act be the owner of the property, which is the subject matter of the partition and also the recipient of the income from such

property. The above decision of the Supreme Court makes it clear that for the purpose of the Income Tax Act, the Hindu Undivided family shall

continue to be owner of the property and also the recipient of the income from the said property. Therefore, the property which was subject matter

of the partial partition effected after 1.1.1979 shall be deemed to belong to the joint family and the effect of section 171(9) of the Act is that no

property shall be deemed to have been separated from the family.

The effect of the deeming provision has been considered by the Supreme Court in Gurupad Khandappa Magdum Vs. Hirabai Khandappa

Magdum and Others, wherein the Supreme Court noticed the earlier decision in Commissioner of Income Tax, Delhi Vs. S. Teja Singh, . In G.K.

Magdum''s case, the Supreme Court has quoted with approval the following observation of Lord Asquith in East End Dwellings Co. Ltd. v.

Finsbury Borough Council (1952) AC 109 at page 132:-

If you are bidden to treat an imaginary state of affairs as real, you must also imagine as real the consequences and incidents which, if the putative

state of affairs had in fact existed, must inevitably have flowed from or accompanied it; and if the statute says that you must imagine a certain state

of affairs, it cannot be interpreted to mean that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable

corollaries of that state of affairs.

Therefore, we hold that when section 171(9) of the Act statutorily declares a partial partition taking place after 31.12.1978 as null and void, the

consequences and incidents which flow from such statutory declaration is that the Hindu Undivided family shall be deemed to continue for the

purpose of the Income Tax Act and it shall be the owner of the property and further it shall be deemed to be the recipient of the income from such

property for the purposes of the Income Tax Act. Therefore, the interest payments made by the firm, though to the partners, shall be treated as if

the firm has made the interest payments to the joint family and such payments are not hit by section 40(b) of the Act. Consequently, we are of the

view that the Appellate Tribunal was correct in holding that the interest payments made are not disallowable u/s 40(b) of the Act and the point

raised in all the appeals has to be answered in favour of the assessee and against the Revenue.

In fine, all the appeals are dismissed. The assessee would be entitled to costs of a sum of Rs.500/- one set.