{"id":254025,"date":"1975-12-18T00:00:00","date_gmt":"1975-12-17T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/govinddas-ors-etc-etc-vs-income-tax-officer-another-on-18-december-1975"},"modified":"2015-09-23T02:34:03","modified_gmt":"2015-09-22T21:04:03","slug":"govinddas-ors-etc-etc-vs-income-tax-officer-another-on-18-december-1975","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/govinddas-ors-etc-etc-vs-income-tax-officer-another-on-18-december-1975","title":{"rendered":"Govinddas & Ors. Etc. Etc vs Income Tax Officer & Another on 18 December, 1975"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Govinddas & Ors. Etc. Etc vs Income Tax Officer & Another on 18 December, 1975<\/div>\n
Equivalent citations: 1977 AIR 552, 1976 SCR (3)\t 44<\/div>\n
Author: P Bhagwati<\/div>\n
Bench: Bhagwati, P.N.<\/div>\n
           PETITIONER:\nGOVINDDAS & ORS. ETC. ETC.\n\n\tVs.\n\nRESPONDENT:\nINCOME TAX OFFICER & ANOTHER\n\nDATE OF JUDGMENT18\/12\/1975\n\nBENCH:\nBHAGWATI, P.N.\nBENCH:\nBHAGWATI, P.N.\nGUPTA, A.C.\nFAZALALI, SYED MURTAZA\n\nCITATION:\n 1977 AIR  552\t\t  1976 SCR  (3)\t 44\n 1976 SCC  (1) 906\n CITATOR INFO :\n R\t    1982 SC 760\t (18)\n D\t    1991 SC1654\t (35,47)\n E\t    1991 SC2278\t (7)\n\n\nACT:\n     Income Tax\t Act<\/a> (11 of  1922) s. 25A<\/a> and Income Tax Act<\/a>\n(43  of\t  1961\tss   171  and  297(2)(d)-Section  171(6)<\/a>  if\nretrospective-General  rule   of  interpretation-  \"All\t the\nprovisions of this Act shall apply accordingly\", scope of.\n\n\n\nHEADNOTE:\n     Under s.  25A<\/a>, Income  Tax Act<\/a>, 1922, a Hindu undivided\nfamily which  has been\tassessed to tax shall be deemed, for\nthe purpose  of that  Act, to  continue\t to  be\t treated  as\nundivided and, therefore, liable to be taxed in that status,\nunless an order is passed in respect of the family recording\na partition of its property. Under s. 25A(1)<\/a>, if at the time\nof making  an assessment,  it is  claimed by or on behalf of\nthe members  of the  family that  the property\tof the joint\nfamily has  been partitioned  among the members or groups of\nmembers in  definite  proportions,  the\t Income-Tax  officer\nshall hold an enquiry and record an order to that effect, if\nsatisfied. Under  s. 25A(2)<\/a>  when, such\t an order  has\tbeen\nrecorded, the  Income Tax  officer shall  apportion the\t tax\nassessed on  the total\tincome of  the undivided  family and\nassess each  member or\tgroup of  members in accordance with\nthe provisions\tof s.  23<\/a> and  add to the tax for which such\nmember or  group of  members may  be separately\t liable, tax\nproportionate  to   the\t portion  of  the  undivided  family\nproperty allotted to him or to the group, and all members or\ngroups of members, shall be liable jointly and severally for\nthe tax\t assessed on  the total\t income received  by  or  on\nbehalf of the joint family. Thus a liability, which, so long\nas an  order is\t not recorded  under  s.  25A(I)<\/a>,  would  be\nrestricted to the assets of the Hindu undivided family is by\nvirtue of s. 25A(2)<\/a> transformed, when the order of partition\nis recorded,  into the personal liability of the members for\nthe amount  of tax  due by  the Hindu undivided family. But,\nthe  order  could  be  recorded\t only  if  there  was  total\npartition as contra-distinguished from partial partition.\n\t\t\t\t\t\t [49 G-50 E]\n     Section 171<\/a> of the Income Tax Act, 1961, corresponds to\ns. 25A\tof the\t1922 Act.  Sub-sections 2<\/a>  to 5<\/a>\t of  s.\t 171\ncontemplate a  case where  at the  time of making assessment\nunder s.  143<\/a> or 144, a claim is made by or on behalf of any\nmember of  a Hindu  family that a total or partial partition\nhas taken place among its members and the Income Tax officer\nhas recorded  a finding.  In such  a case,  all the  members\nwould be  jointly and  severally liable for the tax assessed\n17 as  payable by the joint family and for determining their\nseveral liability,  the tax  assessed on  the  joint  family\nwould be  apportioned among  the members  according  to\t the\nportion of  the joint  family property\tallotted to  each of\nthem. In  s. 171(6)<\/a>  it is provided that even where no claim\nof total  or partial partition is made at the time of making\nthe assessment\tunder s.  143<\/a> or  s. 144<\/a>  and hence no order\nrecording partition  is made  in the course of assessment as\ncontemplated under sub-ss. 2 to 5, if it is found, after the\ncompletion of  the assessment,\tthat the  family has already\neffected a  partition, total  or partial,  all\tthe  members\nshall be  jointly and  severally liable for the tax assessed\nas payable  by the  joint family and the tax liability shall\nbe apportioned among the members according to the portion of\nthe joint  family property allotted to each of them. Section\n171(6)<\/a>, thus,  for the\tfirst time imposes, in cases of this\nkind, joint and several liability on the members for the tax\nassessed on  the Hindu undivided family and this is personal\nliability as  distinct from  liability limited\tto the joint\nfamily\tproperty   received  on\t partition.  Section  171(7)<\/a>\nprovides that  the several  liability of any member or group\nof members shall be computed according to the portion of the\njoint family property allotted to him or it at the partition\nwhether total or partial. [50 G-51 F; 52 C-E]\n     Section 297(2)(d)(ii)<\/a>  of the  1961-Act  provides\tthat\nwhen a notice under s. 148<\/a> of the 1961-Act is issued for the\nreopening an  assessment 'all  the provisions  of  this\t Act\nshall apply accordingly'.\n45\n     There was\ta partial  partition among  the members of a\nHindu undivided\t A family  in 1955. For the assessment years\n1950-51 to  1956-57,  the  assessment  on  the\tfamily\twere\nreopened after\tthe 1961-Act  had come into force by issuing\nnotices under  s. 148<\/a> and! were completed by orders under s.\n147<\/a> of\tthe 1961-Act.  A  much\tlarger\tamount\tof  tax\t was\ndetermined as  payable by  the Hindu  undivided family\tthan\nwhat was  found due  when the original assessments were made\nfor those  assessment  years.  Thereafter,  the\t Income\t Tax\nofficer determined  the several\t liability of the members of\nthe Hindu undivided family under s. 171(7)<\/a> of the 1961\tAct.\nThey filed  petitions in  the  High  Court  challenging\t the\nvalidity of  the orders,  which had  the effect\t of imposing\npersonal liability  on the  members L  of the family, on the\nground, inter  alia, that  s. 171(6)<\/a>  and (7)  do not apply,\nwhere the  assessment of  a Hindu  undivided family was made\nunder the  1922-Act, and at the time when the tax was sought\nto be recovered, it was found that the family had effected a\npartial partition,  since these\t provisions of\tthe 1961-Act\nhad the\t effect of  imposing on\t the members of the family a\nnew liability,\t(namely a  personal liability) which did not\nexist before  and they\tcould not be construed so as to have\nretrospective  effect.\t The  High   Court   dismissed\t the\npetitions.\n     Allowing the appeals to this Court,\n^\n     HELD: The assessments of the Hindu Undivided Family for\nthe assessment\tyears 1950-51  to 1956-57, were completed in\naccordance  with   the\tprovisions  of\tthe  1922-Act  which\nincluded s.  25A<\/a>, and the Income Tax officer was, therefore,\nnot entitled  to avail\thimself of the provisions enacted in\ns. 171(6)  and (7)  of the  1961-Act,  for  the\t purpose  of\nrecovering the\ttax or\tany part thereof personally from any\nmembers of the joint family. [53 B-D]\n     (1) It  is a  well-settled rule  of interpretation that\nunless the  terms of  a\t statute  expressly  so\t provide  or\nnecessarily require  it, retrospective\toperation should not\nbe given  to a\tstatute so  as to  take away  or  impair  an\nexisting right\tor create  a new  obligation or impose a new\nliability otherwise  than as  regards matters  of procedure,\nthe general  rule being \"all statutes other than those which\nare merely  declaratory or  which related only to matters of\nprocedure or  of evidence  are prima  facie prospective\t and\nretrospective operation\t should not be given to a statute so\nas to affect, alter or destroy an existing right or create a\nnew liability  or obligation  unless that  effect cannot  be\navoided without\t doing\tviolence  to  the  language  of\t the\nenactment. If  the enactment  is expressed in language which\nis fairly  capable of  either interpretation, it ought to be\nconstrued as prospective only. [52 E-G]\n     (2) On  this principle,  s. 171(6)<\/a>\t applies only  to  a\nsituation where\t the assessment\t of a Hindu Undivided Family\nis completed  under s. 143<\/a> or s. 144<\/a> of the 1961-Act. It can\nhave no\t application where the assessment of Hindu Undivided\nFamily was  completed under  the corresponding provisions of\nthe old\t Act. Such  a case  would be  governed by  s. 25A<\/a> of\n1922-Act which does not impose any personal liability on the\nmembers in  case of partial partition. Since, in the present\ncase, there  was only  a partial partition, tho liability of\nthe undivided  family to  tax for the various years could be\nrecovered only\tout of the assets of the joint family are it\ncould not  be apportioned  among the  members nor  could the\nmembers be  held jointly and severally liable for payment of\nsuch tax  liability under  s. 25A<\/a>.  To construe s. 171(6)<\/a> of\nthe  1961-Act\tas  applicable\tin  such  a  case  with\t the\nconsequential effect  of casting  on  the  members  personal\nliability which did not exist under s. 25A<\/a>, would be to give\nretrospective operation\t to the\t sub-section  which  is\t not\nwarranted either  by the  express language of that provision\nor by  necessary implication.  Section 171(6)<\/a>  can be  given\nfull effect  by interpreting it as applicable only in a case\nwhere the  assessment of  a Hindu  Undivided Family  is made\nunder s. 143<\/a> or s. 144<\/a> of the 1961-Act. [52 G-53 B]\n     (3) The  words \"all  the provisions  of this  Act shall\napply accordingly  in S.  297(2)(d)(ii)<\/a>, merely refer to the\nmachinery provided  in the  1961-Act for  the assessment  of\nescaped\t income.   They\t do   not  import   any\t substantive\nprovisions  of\t the  1961-Act\t which\tcreate\t rights\t  or\nliabilities. The  word \"accordingly\", in 'the context, means\nnothing more  than \"for\t the purpose  of assessment\"  and it\nclearly suggests  that the  provisions of the 1961-Act which\nare made  applicable arc  those relating to the machinery of\nassessment. Though sub-sections (1) to\n46\n(5) of\ts. 171\tmerely lay down the machinery for assessment\nof a  Hindu undivided  family after  partition, s. 171(6)<\/a> is\nclearly a  substantive provision imposing a new liability on\nthe members  for the  tax determined as payable by the joint\nfamily. The  words \"all\t the provisions\t of this  Act  shall\napply  accordingly\"   cannot,  therefore,  be  construed  as\nincorporating, by  reference, s.  171(6)<\/a>, so  as to  make it\napplicable for\tthe recovery of tax re-assessed on the Hindu\nUndivided Family  in cases  falling within s. 297(2)(d)(ii)<\/a>.\n[54 C-F]\n\n\n\nJUDGMENT:\n<\/pre>\n
     CIVIL APPELLATE  JURISDICTION: Civil  Appeals Nos.\t 702
\nand 840-843 of 1975.\n<\/p>\n
     Appeals by\t special leave\tfrom the  judgment and order
\ndated the  18-3-1975 of the Bombay High Court (Nagpur Bench)
\nNagpur in  special civil  applications Nos. 1668, 1893, 1895
\nto 1897 of 1974.\n<\/p>\n
     S. T.  Desai, S.  C. Mandia  and Shri  Narain  for\t the
\nappellants ‘in C.A. 702\/75.\n<\/p>\n
     S. P.  Mehta, S.  C. Mandia  and Shri  Narain  for\t the
\nappellants in C.A. 840-843\/75.\n<\/p>\n
     V. S.  Desai and  J. Ramamurthi and S. P. Nayar for the
\nrespondents in all the appeals.\n<\/p>\n
     The Judgment of the Court was delivered by
\n     BHAGWATI, J.-These\t five appeals by special leave raise
\na short\t but interesting  question of  law relating  to\t the
\napplicability of  s. 171<\/a>,  sub-s. (6) of the Income Tax Act<\/a>,
\n1961 (hereinafter  referred to\tas the\tnew Act).  The facts
\ngiving rise  to these  appeals are  few and  may be  briefly
\nstated as follows:\n<\/p>\n
     There was\tat all\tmaterial  times\t a  Hindu  Undivided
\nFamily consisting  of one  Gulabdas, his wife and five sons.
\nThe  Hindu   Undivided\tFamily\t had  considerable   movable
\nproperties consisting  of shares  in limited  companies\t and
\njewellery and  it was also a partner through its manager and
\nKarta in  two firms which may for the sake of convenience be
\nreferred to  as the  ‘Export Firm’ and the ‘Mining Firm’. lt
\nappears that  besides these  movable properties,  the  Hindu
\nUndivided Family  also owned some irremovable properties. On
\n15th November,\t1955 there was a partial partition among the
\nmembers of  the\t Hindu\tUndivided  Family  and\tthe  movable
\nproperties were\t divided including the credit balances after
\ntaking into  account the  debit balances  on the Export Firm
\nand the\t Mining Firm.  These movable properties which formed
\nthe subject-matter  of partial\tpartition, were of the value
\nof Rs.\t4,87,054\/- and they were divided amongst the members
\nof the Hindu Undivided Family in such a manner that Gulabdas
\ngot properties\tworth Rs.  53,442\/-, his wife got properties
\nworth  Rs.  50,000\/-,  while  each  of\tthe  five  sons\t got
\nproperties worth  Rs.  76,722\/-.  The  consequence  of\tthis
\npartial partition was that the Hindu Undivided Family ceased
\nto be  a partner  in the Export Firm and the Mining Firm and
\nthereafter Gulabdas  and  his  son  Govinddas  continued  as
\npartners in these two firms in their individual capacity.\n<\/p>\n
     When the  Hindu  Undivided\t Family\t was  sought  to  be
\nassessed for  the assessment  year 1957-58,  for  which\t the
\nrelevant previous  year was Samvat Year commencing from 16th
\nNovember, 1955 a claim was
\n47<\/span>
\nmade on\t behalf of the members of the Hindu Undivided Family
\nthat they  had effected a partial partition of their movable
\nproperties on  15th November,  1955. This claim was accepted
\nby the\tIncome Tax  officer after  due inquiry and a finding
\nwas recorded  by him  in the  order of assessment that there
\nwas a  partial partition  of the  movable properties  of the
\nHindu Undivided\t Family on  15th November,  1955. The result
\nwas that  from and after the assessment year 1957-58 no part
\nof the\tincome of  the Export  Firm or\tthe Mining  Firm was
\nincluded in the assessment of the Hindu Undivided Family.\n<\/p>\n
     Now it  appears that the assessments of the Export Firm
\nand the Mining Firm relating to the assessment years 1950-51
\nto 1956-57  were reopened  after the new Act came into force
\nand reassessments  were made enhancing the assessable income
\nof the\ttwo firms  in accordance with the procedure provided
\nin the\tnew Act.  Consequent upon  the reassessments  of the
\nincome of  the two firms for the assessment years 1950-Sl to
\n1956-57, notices  were issued  to the Hindu Undivided Family
\nfor reassessments  of its  income for those years, since the
\nHindu Undivided\t Family was  a partner\tin these  two  firms
\nduring those  years. The Income Tax officer, after following
\nthe requisite  procedure. passed  an order  of\treassessment
\ndated 26th  March, 1970\t for each  of the  assessment  years
\n1950-Sl to  1956-57 enhancing  the assessable  income of the
\nHindu Undivided\t Family. The  appeals filed by the two firms
\nagainst the  orders of\treassessment made  on them partially
\nsucceeded before  the Appellate\t Assistant Cornmissioner and
\nconsequently, orders  were passed  by the Income Tax officer
\non 25th\t March, 1971  rectifying the  orders of reassessment
\ndated 26th  March, 1970\t made against  the  Hindu  Undivided
\nFamily. The  two firms\tobtained some  further relief  as  a
\nresult of  appeals filed  by them before the Tribunal and in
\nconsequence,  further\trectification\torders\t dated\t 3rd
\nSeptember, 1974\t were  passed  by  the\tIncome\tTax  officer
\nrectifying the\treassessments of the Hindu Undivided Family.
\nThe net\t effect of  these orders  of rectification passed by
\nthe Income  Tax officer\t was that  ultimately a\t much larger
\namount of  tax\twas  determined\t as  payable  by  the  Hindu
\nUndivided Family  than what  was found due when the original
\nassessments were  made for  the assessment  years 1950-51 to
\n1956-57.\n<\/p>\n
     So far the members of the Hindu Undivided Family had no
\ngrievance because  what was  done by  the Income Tax officer
\nwas merely  to carry  out reassessment\tor rectification  of
\nassessment of  the income  of  the  Hindu  Undivided  Family
\nconsequent upon\t enhancement of the assessable income of the
\ntwo firms  in which the Hindu Undivided Family was a partner
\nduring the  assessment years 1950-Sl to 1956-57. But on 25th
\nJanuary, 1974, the Income Tax officer made certain orders in
\nrespect of the assessment years 1950-Sl to 1954-55 and 1956-
\n57  which   prejudicially  affected   the  interest  of\t the
\npetitioners.  The  Income  Tax\tofficer,  by  these  orders,
\ndetermined the several liability of the members of the Hindu
\nUndivided Family  under s. 171<\/a>, sub-s. (7) of the new Act by
\napportioning the  assessed on the Hindu Undivided Family for
\nthe assessment\tyears 1950-51 to 1954-55 and 1956-57 amongst
\nthe members  in the  proportion of  2\/7th share to Gulabdas-
\nthis perhaps  also included  the share of his wife-and l\/7th
\nshare  to   each  of   the  five  sons.\t These\torders\twere
\nsubsequently rectified by
\n48<\/span>
\norders dated  3rd September, 1974 revising the allocation of
\nthe   liability, consequent  upon the  rectification made in
\nthe orders  of assessment against the Hindu Undivided Family
\nas a  result of\t the relief  granted to the two firms by the
\nTribunal.  The\t orders\t dated\t 3rd  September,  1974\talso
\nproceeded on  the same lines and allocated the tax liability
\nof the\tHindu Undivided\t Family amongst\t the members  in the
\nsame shares  as the  earlier orders.  The Income Tax officer
\nalso passed  an order dated 13th August, 1974 allocating the
\ntax  liability\t of  the  Hindu\t Undivided  Family  for\t the
\nassessment year 1955-56 among the members in the same shares
\nunder s. 171<\/a>, sub-s. (7) of the new Act.\n<\/p>\n
     This led  to the  filing of  a petition  by each of the
\nfive  sons  of\tGulab  das  in\tthe  High  Court  of  Bombay
\nchallenging the validity of the orders dated 13th August and
\n3rd  September,\t 1974  which  had  the\teffect\tof  imposing
\npersonal liability  on each  of the  members  of  the  Hindu
\nUndivided Family for the tax liability allocated to him. The
\npetitioners  in\t these\tpetitions  did\tnot  object  to\t the
\nrecovery of  the tax liability of the Hindu Undivided Family
\nfrom out  of the joint Family properties come to their hands
\non partial  partition, but their argument was that they were
\nnot jointly  and severally  liable for the tax liability nor
\nwas
\n the  Income Tax  officer entitled  to proceed\tagainst them
\npersonally or  recovery of  any share  of the tax liability.
\nThat raised  the question  as to the applicability of sub-s.
\n(6) read  with sub-s. (7) of s. 171<\/a> of the. new Act, for, it
\nwas under this provision that the Income Tax officer claimed
\nto allocate  the tax  liability amongst\t the members  of the
\nHindu Undivided\t Family and  to recover from the petitioners
\npersonally the share of the tax liability allocated to them.
\nThe principal  contention. of  the petitioners\twas that the
\nprovision in s. 171<\/a>, sub-s. (63 and (7). had no application,
\nwhere the  assessment of  a Hindu  Undivided Family was made
\nunder the  provisions of  the Indian  Income Tax  Act<\/a>,\t1922
\n(hereinafter referred  to as,  the old\tAct) and at the time
\nwhen the  tax was  sought to be recovered, it was found that
\nthe family  had effected  a partial  partition,\t since\tthis
\nprovision had  the effect of imposing one the members of the
\nHindu Undivided\t Family a  new liability which did not exist
\nbefore\tand  it\t could\tnot  be\t construed  so\tas  to\thave
\nretrospective  operation.   This  contention  was,  however,
\nrejected by  the High  Court and it was held that sub-s. (6)
\nread with sub-s. (7) of s. 171<\/a> was applicable in the present
\ncase and since the Income Tax Officer found at the time when
\nhe sought to recover the tax liability assessed on the Hindu
\nUndivided Family,  that the  family had\t already effected  a
\npartial partition on 15th November, 1955, he was entitled to
\nrecover the  tax from  every member  of the  Hindu Undivided
\nFamily and each member was severally liable for his share of
\nthe tax\t computed; according  to the  portion of  the  joint
\nfamily property\t allotted to  him at  the partial partition.
\nThe High  Court also rejected the other contentions advanced
\non behalf  of the  petitioners and  dismissed  each  of\t the
\npetitions with\tcosts. The  petitioners thereupon  preferred
\nthe present  appeals with  special leave  obtained from this
\nCourt.\n<\/p>\n
     Though several contentions were raised in the petitions
\nand also  argued before\t the High  Court, the petitioners at
\nthe hearing  of the  appeals before us confined their attack
\nagainst the validity of the
\n49<\/span>
\norders dated  13th August,  1974 and  3rd September, 1974 to
\nonly one contention and that related to the applicability of
\nsub-s. (6)  read with  sub-s. (7)  of s. 171<\/a> of the new Act.
\nThe petitioners\t sought to repel the applicability of sub-s.
\n(6) of\ts. 171 of the new Act by a two fold argument. In the
\nfirst place,  the petitioners  contended that  s. 25A<\/a> of the
\nold Act did not impose any personal liability on the members
\nfor the\t tax assessed  on the Hindu Undivided Family in case
\nof partial  partition. This  liability was  created for\t the
\nfirst time  by sub-s.  (6) of s. 171<\/a> of the new Act and this
\nsub-section could  not,\t therefore,  be\t construed  to\thave
\nretrospective effect  so as  to apply to assessments made on
\nthe Hindu  Undivided Family for any assessment year prior to
\n1st April,  1962 when  the new\tAct  came  into\t force.\t The
\npresent L- case, which related to the assessment years 1950-
\n51 to  1956-5 \/, was in the circumstances governed by s. 25A<\/a>
\nof the\told Act\t in so\tfar  as\t the  question\tof  personal
\nliability of  the members was concerned and sub-s. (6) of s.
\n171<\/a> of\tthe new\t Act had  no application to it. Secondly, it
\nwas urged  on behalf of the petitioners that even if s. 171<\/a>,
\nsub-s. (6) of the new Act were applicable in a case like the
\npresent,  the\tconditions  of\tthis  sub-section  were\t not
\nsatisfied, as  there was  no finding  of  partial  partition
\nrecorded by  the Income Tax officer after making due inquiry
\nas contemplated\t in sub-s.  (3) of s. 171<\/a> of the new Act. Of
\nthese two  arguments, the  first is,  in our  opinion,\twell
\nfounded and  hence it  is  not\tnecessary  to  consider\t the
\nsecond.\n<\/p>\n
     We may  first look\t at s.\t25A<\/a>  of\t the  old  Act.\t The
\nposition which\tobtained before\t this section was introduced
\nin the\told Act was that though a Hindu Undivided Family was
\na unit of assessment, there was no machinery provided in the
\nAct for\t levying tax and enforcing liability to tax in cases
\nwhere a\t Hindu Undivided  Family had  received income in the
\nyear of\t ac`count but  was no longer in existence as such at
\nthe time  of assessment.  This difficulty was the more acute
\nby reason  of the provision contained in s. 14(1)<\/a> which said
\nthat tax  shall not  be payable by an assessee in respect of
\nany sum\t which he  received as a member of a Hindu Undivided
\nFamily. `  The\tresult\twas  that  the\tincome\tof  a  Hindu
\nUndivided Family could not be assessed and the tax could not
\nbe collected  from the members of the family, if at the time
\nof making  the assessment  the family  was divided. This was
\nobviously  a   lacuna  and   the   legislature,\t  therefore,
\nintroduced s.  25A<\/a> in  the old\tAct for\t assessment  of\t the
\nincome of  a Hindu  Undivided Family  and enforcement of the
\nliability to  tax, where  the Hindu  Undivided Family was no
\nlonger in  existence at\t the date  of  assessment.  But,  as
\npointed out  by this  Court in Additional Income-Tax Officer
\nv. Thimmayya<\/a>(1)\t this section went very much beyond what was
\nrequired for  rectifying the defect. It made two substantive
\nprovisions, namely,  (1) a  Hindu undivided family which has
\nbeen assessed  to tax  shall be deem ed, for the purposes of
\nthe  Act,  to  continue\t to  be\t treated  as  undivided\t and
\ntherefore liable to be taxed in that status, unless an order
\nis passed  in respect  of that family recording partition of
\nits property  as contemplated  by sub-ss.  (1) and (2) if at
\nthe time  of making  an assessment,  it is  claimed by or on
\nbehalf of the members of the family that
\n     (1) 55 I.T.R. 66.\n<\/p>\n
50<\/span><\/p>\n
the property  of the joint family has been partitioned among
\nthe members or groups of members in definite portions, i.e.,
\na complete  partition of  the  entire  estate  is  made,  as
\ndistinct from  a partial  partition, the  Income Tax Officer
\nshall hold  an inquiry\tand if\the  is\tsatisfied  that\t the
\npartition has  taken place, he shall record an order to that
\neffect. Where  such order  has been  passed, the  Income Tax
\nofficer would be entitled to make an assessment of the total
\nincome received\t by or\ton behalf  of  the  Hindu  Undivided
\nFamily as  if no  partition had taken place. Now, ordinarily
\nwhen tax  is assessed  on a Hindu undivided family, it would
\nbe payable  out of  the properties of the joint family, even
\nafter they are partitioned amongst the members and no member
\nwould be  personally liable for discharging the liability to
\ntax. But  J sub-s. (2) made a radical departure and provided
\nthat when  upon a   total  partition, an order under. sub-s.
\n(1)  has   been\t recorded,  the\t Income\t Tax  officer  shall
\napportion the  tax assessed on the total income of the Hindu
\nundivided family  and assess each member or group of members
\nin accordance  with the provisions of s. 23<\/a> by adding to the
\ntax for\t which such  member  of\t group\tof  members  may  be
\nseparately liable,  tax proportionate  to the portion of the
\nundivided family  property allotted  to him or’ to the group
\nand all\t members or  groups   of members  shall\t be  “liable
\njointly and  severally for  the tax  assessed on  the  total
\nincome received\t by or\ton behalf  of the joint family”. The
\nliability which,  so long  as an order is not recorded under
\nsub-s. (1),  would be  restricted to the assets of the Hindu
\nundivided  family,  was\t thus,\tby  virtue  of\tsub-s.\t(2),
\ntransformed, when  the\torder  is  recorded,  into  personal
\nliability of  the members  for the  amount of tax due by the
\nHindu undivided family. But the order could be recorded only
\nif   there was total partition, as contra-distinguished from
\npartial partition,  and on  a claim  made by or on behalf of
\nthe members  of the  family, the  Income Tax  officer, after
\nholding an  inquiry, was satisfied that such total partition
\nhad taken  place. Now,\tin the\tpresent case,  the partition
\nwhich took  place between the members of 15th November, 1955
\nwas partial  as regards\t the properties\t of the joint family
\nand there  was\tno  total  partition  effected\tamongst\t the
\nmembers at  any time.  Hence  the  liability  of  the  Hindu
\nUndivided Family  to tax for the assessment years 1950-51 to
\n1956-57 could  be recovered  only out  of the  assets of the
\njoint family  and it  could not\t be apportioned\t amongst the
\nmembers nor  could the members be held jointly and severally
\nliable for payment of such tax liability under s. 25A<\/a> of the
\nold Act.  The question\tis whether  the enactment of sub-ss.
\n(6) and (7) of s. 171<\/a> of the new Act has made any difference
\nin this position.\n<\/p>\n
     Section 171<\/a> of the new Act corresponds to s. 25A<\/a> of the
\nold Act\t and provides  for assessment  of a  Hindu undivided
\nfamily after  partition. But  it has made various changes in
\nthe law.  The principal\t change\t is  that  the\tnew  section
\napplies not  only to  cases of\ttotal partition, but also to
\ncases of  Partial Partition.  Sub-s.  (1)  of  this  section
\nreproduces the\tsame fiction  as in s. 25A<\/a> and deems a Hindu
\nfamily to  continue to\tbe a  Hindu undivided family “except
\nwhere and in so far as a finding of partition has been given
\nin respect  of\tthe  Hindu  undivided  family”.\t Sub-s.\t (2)
\nprovides that where, at the time of making
\n51<\/span>
\nan assessment under s. 143<\/a> or s. 144<\/a>, it is claimed by or on
\nbehalf of  any member  of a  Hindu family  that a partition,
\nwhether total  or partial, has taken place among the members
\nof such family, the Income Tax officer shall make an inquiry
\nafter giving  notice to\t all the  members of  the family and
\nsub-s. (3)  proceeds to\t say that  on the  completion of the
\ninquiry, the Income Tax officer shall record a finding as to
\nwhether there  has been\t a total or partial partition of the
\nfamily property\t and if there has been such a partition, the
\ndate on\t which it  has taken  place. Where an order has been
\nmade recording\tthe partition,\tthe assessment\tof the total
\nincome received\t by or on behalf of the joint family as such
\nis required to be made in accordance with the procedure laid
\ndown in sub-s. 4(a) and (S), which is the same as that under
\ns. 25A,\t although the  relevant provisions  are\t differently
\ncast. The  procedure is\t to compute  the total income of the
\njoint family  upto  the\t date  of  the\tpartition  and\talso
\ndetermine the  tax payable by the joint family as such as if
\nno partition  had taken place and as if the joint family was
\nstill in  existence. Sub-s.  4(b) makes each member or group
\nof members jointly and severally liable for the whole amount
\nof the\ttax determined\tas payable by the joint family. Then
\nfollows sub-s. (6) which is material and reads as follows:-\n<\/p>\n
\t  “notwithstanding  anything   contained   in\tthis
\n     section,  if   the\t Income-tax   officer  finds   after
\n     completion of  the\t assessment  of\t a  Hindu  undivided
\n     family  that   the\t family\t  has  already\t effected  a
\n     partition, whether\t total or  partial, the\t Income\t tax
\n     officer shall  proceed to\trecover the  tax from  every
\n     person who,  was a\t member of  the\t family\t before\t the
\n     partition, and  every such\t person shall be jointly and
\n     severally\tliable\t for  the   tax\t on  the  income  so
\n     assessed.”\n<\/p><\/blockquote>\n
Sub-s. (7) provides that “for the purposes of this section”,
\nthat is,  for the  purposes of\tsub-ss. 4(b)  and (6),\t“the
\nseveral liability of any member or group of members shall be
\ncomputed according  to\tthe  portion  of  the  joint  family
\nproperty allotted  to him  or it  at the  partition, whether
\ntotal or partial”.\n<\/p>\n
     Now it  is clear on a plain grammatical construction of
\nthe language  of sub-s. (2) to (5) of s. 171<\/a> that these sub-
\nsections contemplate  a case  where at\tthe time  of  making
\nassessment under  ss. 143<\/a>  or 144,  a claim is made by or on
\nbehalf of  any member  of a  Hindu family  that a  total  or
\npartial partition  has taken  place among  its members. Then
\nthe claim  would be  investigated by the Income tax  officer
\nand if\tsatisfied, the\tIncome Tax  Officer would  record  a
\nfinding that  there has\t  been\tsuch partition\tof the\tpint
\nfamily property\t and the  assessment of\t the total income of
\nthe joint  family would then be made as if no such partition
\nhad taken place. And in such a case all the members would be
\nJointly and severally liable for the tax assessed as payable
\nby the\tjoint  family  and  for\t determining  their  several
\nliability,  the\t assessed  on  the  joint  family  would  be
\napportioned among  the members\t“according to the portion of
\nthe joint  family property allotted to” each of them. But it
\nmay happen  that at  the time of making assessment under ss.
\n143<\/a> or\t144 no\tclaim of partition, total or partial, is put
\nforward on  behalf of  any member  of a Hindu family, either
\nbecause
\n52<\/span>
\nno such\t partition has taken place or because of inadvertent
\nor deliberate  omission on  the part  of the  members of the
\nHindu family  and where that happens, the Hindu family would
\ncontinue to  be assessed as a Hindu undivided family and the
\ntax determined\tas payable  by it  would be recoverable only
\nout of\tthe joint  family properties  and no member would be
\npersonally liable  for any  part of  the lax, even though an
\norder recording\t partition may\thave been  passed after\t the
\nassessment, since  sub-s. (4)(b)  of s.\t 171<\/a> would  have  no
\napplication in such a case. That was also the position under
\ns. 25A\tof the\told Act with this difference that under that
\nsection the only partition which could be recorded was total
\npartition and  not partial partition. The legislature, while
\nenacting s 17.1 in the new Act, decided to introduce another
\nradical departure from the old Act by providing in sub-s (6)
\nthat even  where no  claim of  total or partial partition is
\nmade at the time of making assessment under s. 143<\/a> or s. 144<\/a>
\nand hence no order recording partition is made in the course
\nof assessment  as contemplated\tunder sub-ss. (2) to (5), if
\nit is  found? after  the completion  of the assessment, that
\nthe family  has already\t effected.  a  partition,  total  or
\npartial, all  the members  shall be  jointly  and  severally
\nliable for  the tax  assessed as payable by the joint family
\nand the tax liability shall be apportioned among the members
\naccording to  the  portion  of\tthe  joint  family  property
\nallotted to  each of them. Sub-s. (6) of s. 171<\/a> thus for the
\nfirst time imposed, in cases of this kind, joint and several
\nliability on  the members  for the tax assessed on the Hindu
\nundivided family  and  this  was  a  personal  liability  as
\ndistinct from liability limited to the joint family property
\nreceived on partition.\n<\/p>\n
     Now  it  is  a  well  settled  rule  of  interpretation
\nhallowed by  time and sanctified by judicial decisions that,
\nunless the  terms of  a\t statute  expressly  so\t provide  or
\nnecessarily require  it, retrospective\toperation should not
\nbe given  to a\tstatute so  as to  take\t away  or  impair  a
\nexisting right\tor create  a new  obligation or impose a new
\nliability otherwise  than as  regards matters  of procedure.
\nThe general rule as stated by Halsbury in ol. 36 of the Laws
\nof England  (3rd Ed.) and reiterated in several decisions of
\nthis Court  as well  as English Courts is that “all statutes
\nother than  those which\t are  merely  declaratory  or  which
\nrelate only to matters of procedure or of evidence are prima
\nfacie prospective” and retrospective operation should not be
\ngiven to  a statute  so as  to affect,\talter or  destroy an
\nexisting right\tor create  a  new  liability  or  obligation
\nunless that  effect cannot be avoided without doing violence
\nto the\tlanguage of  the  enactment.  If  the  enactment  is
\nexpressed in  language which  is fairly\t capable  of  either
\ninterpretation, it  ought to  be  construed  as\t prospective
\nonly. If  we apply  this principle  of interpretation, it is
\nclear that  sub s. (6) of s. 171<\/a> applies only to a situation
\nwhere  the   assessment\t of  a\tHindu  undivided  family  is
\ncompleted under s. 143<\/a> or s. 144<\/a> of the new Act. It can have
\nno application\twhere the  assessment of  a Hindu  undivided
\nfamily is  completed under  the corresponding  provisions of
\nthe old\t Act. Such a case would be governed by s. 25A<\/a> of the
\nold Act\t which does not impose any personal liability on the
\nmembers in  case of partial partition and to construe sub-s.
\n(6) of s. 171<\/a> as applicable in such a case with
\n53<\/span>
\nconsequential effect  of casting  on  the  members  personal
\nliability which did not exist under s. 25A<\/a>, would be to give
\nretrospective operation to sub-s. (6) of s. 171<\/a> which is not
\nwarranted either  by the  express language of that provision
\nor by  necessary implication.  Sub-s. (6)  of s.  171<\/a> can be
\ngiven full effect by interpreting it as applicable only in a
\ncase where  the assessment  of a  Hindu undivided  family is
\nmade under  s. 143<\/a>  or s.  144<\/a> of  the new  Act. We  cannot,
\ntherefore, consistently\t with  the  rule  of  interpretation
\nwhich denied  retrospective operation to a statute which has
\nthe effect  of creating\t or imposing  a\t new  obligation  or
\nliability, construe sub-s. (6) of s. 171<\/a> as embracing a case
\nwhere assessment  of a\tHindu undivided family is made under
\nthe provisions of the old Act. Here in the present case, the
\nassessments of the Hindu Undivided Family for the assessment
\nyear 1950-Sl  to 1956-57  were completed  in accordance with
\nthe provisions\tof the old Act which included s. 25A<\/a> and the
\nIncome tax  officer was, therefore, not entitled to avail of
\nthe provision  enacted in sub-s. (6) read with sub-s. (7) of
\ns. 171\tof the new Act for the purpose of recovering the tax
\nor any part thereof personally from any members of the joint
\nfamily including the petitioners.\n<\/p>\n
     But the  Revenue Authorities  then fell back on another
\ncontention,  namely, that since the assessments of the Hindu
\nUndivided Family for the assessment years 1950-51 to 1956-57
\nwere reopened  by the  Income Tax Officer by issuing notices
\nunder s.  148<\/a> and the reassessments were completed by orders
\ndated 26th  March, 1970\t under\ts.  147,  in  virtue  or  s.
\n297(2)(d)<\/a> of  the new  Act, sub-s.  (6) of s 171 was, on the
\nplain terms  of s.  297(e)(d)<\/a>, applicable and the Income Tax
\nofficer was entitled to recover personally from the members,
\nthe tax\t reassessed on the Hindu Undivided Family, as it was
\nfound by  him that the family had already effected a partial
\npartition. This\t contention requires  an examination  of the
\ntrue meaning and effect of s. 297(2)<\/a> (d) That subsection has
\ntwo clauses and it reads as follows:\n<\/p>\n
     “(d) Where\t in respect of any assessment year after the
\nyear ending on the 31st day of March, 1940,-\n<\/p>\n
\t  (i)  a notice under section 34<\/a> of the repealed Act
\n\t       had been\t issued before\tthe commencement  of
\n\t       this Act,  the proceedings  in  pursuance  of
\n\t       such notice  may be continued and disposed of
\n\t       as if this Act had not been passed;<\/p><\/blockquote>\n
\t  (ii) any income  chargeable  to  tax\thad  escaped
\n\t       assessment  within   the\t meaning   of\tthat
\n\t       expression in  section 147<\/a> and no proceedings
\n\t       under section  34<\/a>  of  the  repealed  Act  in
\n\t       respect of any such income are pending at the
\n\t       commencement of\tthis  Act,  a  notice  under
\n\t       section 148<\/a>  may, subject  to the  provisions
\n\t       contained in  section 149<\/a>  or section 150<\/a>, be
\n\t       issued with  respect to\tthat assessment year
\n\t       and all\tthe provisions\tof  this  Act  shall
\n\t       apply accordingly. ‘
\nAdmittedly, in\tthe present  case, cl.\t(ii) of s. 297(2)(d)<\/a>
\napplied since  no proceedings  under s. 34 OF the old Act in
\nrespect of escaped
\n54<\/span>
\nincome of  the Hindu  Undivided Family\twere pending  at the
\ntime of\t the commencement of the new Act and it was for this
\nreason that  notices under  s. 148<\/a> were issued by the Income
\nTax officer  for Reopening  the\t assessments  of  the  Hindu
\nUndivided Family  for the  assessment years 1950-51 to 1956-\n<\/p>\n
57. Now\t clause (ii)  of s.  297(2)<\/a> (d) provides that when a
\nnotice under  s. 148<\/a>  is issued\t for reopening an assessment
\n“all the  provisions of\t this Act  shall apply accordingly”.
\nThe argument of the Revenue Authorities, therefore, was that
\nwhen notices  under s.\t14<\/a> were\t issued\t for  reopening\t the
\nassessments  of\t  the  Hindu   Undivided  Family,   all\t the
\nprovisions  of\tthe  new  Act  became  applicable  and\tthey
\nincluded sub-s.\t (6) of\t s. 171<\/a>\t and, therefore,  that\tsub-
\nsection was applicable for recovery of the tax reassessed on
\nthe Hindu  Undivided Family pursuant to the notices under s.\n<\/p>\n
148. This  argument is\twithout force.\tIt  is\tbased  on  a
\nmisconstruction of the words “all the provisions of this Act
\nshall apply  accordingly” in cl. (ii) of s 297(2) (d). These
\nwords merely  refer to the machinery provided in the new Act
\nfor the assessment of the escaped income. They do not import
\nany substantive\t provisions of\tthe  new  Act  which  create
\nrights or liabilities. The word ‘accordingly’ in the context
\nmeans nothing  more than ‘for the purpose of assessment” and
\nit clearly suggests that the provisions of the new Act which
\nare made  applicable are  those relating to the machinery of
\nassessment.  The   substantive\tlaw   to  be   applied\t for
\ndetermining the liability to tax must necessarily be the law
\nunder the  old Act, for that is the law which applied during
\nthe relevant  assessment years and it is that law which must
\ngovern the  liability of  the parties. Though sub-ss. (1) to
\n(S) of\ts. 171\tmerely lay down the machinery for assessment
\nof a  Hindu undivided  family after partition, sub-s. (6) of
\ns. 171\tis clearly  a  substantive  provision  imposing\t new
\nliability on  the members  for the tax determined as payable
\nby the\tjoint family.  The words “all the provisions of this
\nAct shall apply accordingly” cannot therefore be consumed as
\nincorporating by reference subs. (6) of s. 171<\/a> so as to make
\nit applicable  for recovery  of the  tax reassessed  on\t the
\nHindu Undivided\t Family in  cases falling within cl. (ii) of
\ns. 297(2)  (d). This  contention of  the Revenue Authorities
\nmust accordingly be rejected.\n<\/p>\n
     In the circumstances we allow these appeals and issue a
\nwrit in\t each appeal  quashing and  setting aside the orders
\ndated  13th  August,  1974  and\t 3rd  September,  1974.\t The
\nrespondents  will   pay\t the   costs  of   the\t petitioners
\nthroughout.\n<\/p>\n
V.P.S.\t\t\t\t\t     Appeals allowed\n55<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Govinddas & Ors. Etc. Etc vs Income Tax Officer & Another on 18 December, 1975 Equivalent citations: 1977 AIR 552, 1976 SCR (3) 44 Author: P Bhagwati Bench: Bhagwati, P.N. PETITIONER: GOVINDDAS & ORS. ETC. ETC. Vs. RESPONDENT: INCOME TAX OFFICER & ANOTHER DATE OF JUDGMENT18\/12\/1975 BENCH: BHAGWATI, P.N. BENCH: BHAGWATI, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-254025","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nGovinddas & Ors. Etc. Etc vs Income Tax Officer & Another on 18 December, 1975 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/govinddas-ors-etc-etc-vs-income-tax-officer-another-on-18-december-1975\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Govinddas & Ors. Etc. 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