Cit Vs. Kailash Kumar Dixit - Court Judgment

Excerpt:
counsels: mahajan, for the revenue gulati, for the assessee in the allahabad high court dr. b.s. chauhan & ghanshyam dass, jj. - land acquisition act, 1894 [c.a. no. 1/1894]. section 4; [sushil harkauli, s.k. singh & krishna murari, jj] acquisition of land held, court cannot issue a writ of mandamus directing the state authorities to acquire a particular land. land acquisition is not purely ministerial act to be performed by executive no direction in nature of mandamus whether interim or final can be issued by court under article 226 necessarily to acquire particular land in public interest. land acquisition is not a purely ministerial act to be performed by the executive and therefore, no mandamus can be issued by the court in exercise of its power under article 226 of the constitution, whether suo motu or otherwise, whether in public interest litigation or otherwise directing acquisition of land under the provisions of land acquisition act, 1894. it would, however, be open to the court in exercise of that power to invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time frame. however, the power of the court under article 226 must necessarily stop at that. thereafter, if the decision taken by the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the court to quash the decision and to require reconsideration. but no direction in the nature of mandamus whether interim or final can be issued by the court under article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose. section 4; compulsory acquisition of land powers of state government held, renewal of lease in favour of petitioners would not take away power of state government of compulsory acquisition of land. renewal of lease would at best be taken into consideration for determining quantum of compensation. orderthis is a reference under section 256(1) of the income tax act, 1961. following question has been referred for the opinion of this court :'whether on the facts and in the circumstances of the case, the appellate tribunal was justified in law in taking the view that a valid partial partition had been effected of the assessee-huf on 30-6-1976 ?'2. heard sri gulati, learned counsel for the assessee and sri mahajan, learned counsel for revenue.3. the learned counsel at bar are in agreement that the matter stands fully covered by the judgment of the hon'ble supreme court in apoorva shantilal shah v. cit : [1983]141itr558(sc) , wherein it has been held that a partial partition of any joint family property by the father, between himself and his sons, does not become invalid on the ground that there has been no equal distribution amongst the co-sharers and the father was having a right to give consent for partition on behalf of his minor sons.4. in view of the above, the reference is decided in favour of the assessee and against the revenue.

Judgment:
ORDER

This is a Reference under section 256(1) of the Income Tax Act, 1961. Following question has been referred for the opinion of this court :

'Whether on the facts and in the circumstances of the case, the Appellate Tribunal was justified in law in taking the view that a valid partial partition had been effected of the assessee-HUF on 30-6-1976 ?'

2. Heard Sri Gulati, learned counsel for the assessee and Sri Mahajan, learned counsel for revenue.

3. The learned counsel at bar are in agreement that the matter stands fully covered by the judgment of the Hon'ble Supreme Court in Apoorva Shantilal Shah v. CIT : [1983]141ITR558(SC) , wherein it has been held that a partial partition of any joint family property by the father, between himself and his sons, does not become invalid on the ground that there has been no equal distribution amongst the co-sharers and the father was having a right to give consent for partition on behalf of his minor sons.

4. In view of the above, the reference is decided in favour of the assessee and against the revenue.