Law:

Section:

Section 256(2) of the Income-tax act, 1961-Reference-Question of law-Assessee-HUF, donsisting of karta, his wife and three caughters, claimed partial partition in which certain HUF's properties were allotted to karta in his individual capacity-ITO, AAC and tribunal rejected claim of partial partition holding that there could be no partition between two capacities of the same coparcener-Tribunal also rejected assessee's alternative plea to treat the case as one of gift from HUF to karta in his individual capacity-Whether any question of law arose from tribunal's order-Held, on facts, no Facts The assessee-HUF consisted of the karta, R, his wife and three daughters. The assessee claimed partial partition of the HUF properties, allotting certain shares owned by the HUF to R and keeping the remaining properties joint. The claim was rejected by the ITO, the AAC and the Tribunal. The Tribunal also rejected the assessee's alternative claim that it may be treated as a case of gift by R as the karta to himself" in his individual capacity. Further, the Tribunal declined the assessee's application for reference under section 256(1) of the two questions, viz., ( i) whether the Tribunal was right in holding that there was no partial partition in law and, alternatively, (ii) whether the assessee's manner of dealing with the shares could not be construed as a gift by the family, as such, to R as an individual coparcener. On application under section 256(2): Held There can be a partition only between two coparceners or more, not between two capacities of the same coparcener, as in this case. Since there was only a solitary male member in the family who was its karta and there was no other coparcener entitled to any share in any partition, the Tribunal had rightly held that no partition could be brought about by the assessee under the law, either in the manner adopted or in any other manner. Consequently, although the first question on which reference was sought was a question of law, yet it was not of such a type as would call for a reference. The second question mooted by the assessee reflected an idea which, if anything, was more artificial than that of a partial partition.…

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