JUDGMENT A.R. Tiwari, J. 1. These miscellaneous civil cases, filed under Section 256(2) of the Income-tax Act, 1961 (for short "the Act"), are heard as connected, matters and are being disposed of by this common order. 2. Miscellaneous Civil Case No. 120 of 1989 arises out of the order dated January 2, 1987, passed by the Tribunal in I.T.A. No. 743/Ind/85, for the assessment year 1980-81 and is connectible with the application presented under Section 256(1) of the Act and registered as R.A. No. 45/Ind/87 decided on December 2, 1988. In this case, the following questions are proposed : " (i) Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in holding that the family arrangement in the instant case amounted to a partial partition covered by Section 171(9) of the Income-tax Act ? (ii) Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in holding that even the genuine family settlements which had not the effect of avoiding tax were also covered by the provisions of Section 171(9) of the Income-tax Act ? (iii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the ratio of the judgment of the Supreme Court in the case of Kalloomal Tapeswari Prasad (HUF) [1982] 133 ITR 690, was applicable to the present case ? (iv) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that assets which had actually and admittedly gone out of the family fold as a consequence of the family arrangement could be assessed in the hands of the family ?" 3. Miscellaneous Civil Case No. 578 of 1992 arises out of the common order passed by the Tribunal in I.T.A. Nos. 59 and 60/Ind/85 for the assessment years 1981-82 and 1982-83 and M.A. Nos. 6 and 7/Ind/89 decided on February 28, 1992, after partial rejection of the applications presented under Section 256(1) of the Act and registered as R.A. Nos. 37 and 47/Ind/ 89 on July 15, 1992. By this order dated July 15, 1992, only one question was referred which pertained to the question of validity of reopening of the assessment under Section 143(2)(b) of the Act. 37 and 47/Ind/ 89 on July 15, 1992. By this order dated July 15, 1992, only one question was referred which pertained to the question of validity of reopening of the assessment under Section 143(2)(b) of the Act. In this case, the following questions are proposed : " (i) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in refusing to apply the ratio of the judgment of the Madras High Court in the case of M.V. Valliappan v. ITO [1988] 170 ITR 238 ? (ii) Whether, on the facts and in the circumstances of the case, the case is covered by the provisions of Section 171(9) of the Act and if covered, then whether the Tribunal was justified in not giving effect of the judgment of the Madras High Court [1988] 170 ITR 238 ? (iii) If according to the Tribunal, the case was not covered by Section 171(2) and (3) then whether the Tribunal could uphold the order derecognising the partial partition (family settlement) under Section 171(9) of the Income-tax Act ? (iv) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in applying the ratio of the judgment of the Supreme Court in the case of Kalloomal Tapeswari Prasad (HUF) v. CIT [1982] 133 ITR 690, especially in the context of the fact that the judgment did not deal with the provisions of Section 171(9) of the Income-tax Act as the same were not at statute book ? (v) Whether the order of the Tribunal is valid in law in view of the provisions having been declared ultra vires and non-existent in law by binding authority of the Madras High Court ? (vi) Whether, on the facts and in the circumstances of the case, it was necessary to make a claim for partition by the applicant particularly and especially when the income-tax authorities, including the Appellate Tribunal, categorically found as a fact and law that the family settlement in fact was partial partition and could not be derecognised under the law ? (vii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in maintaining the order of earlier authorities derecognising the partial partition and could not be recognised under the law ? (vii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in maintaining the order of earlier authorities derecognising the partial partition and could not be recognised under the law ? (viii) Whether, on the facts and under the circumstances of the case, the Tribunal was justified in maintaining the order of earlier authorities de-recognising a partial partition even in the absence of enquiry, in view of the authoritative pronouncement of the Supreme Court in the case of Kapurchand Shrimal v. CIT [1981] 131 ITR 451, where their Lordships have held that it is the duty of the Tribunal to correct the errors and remand the case for further enquiry, if the enquiry is not made ?" 4. Briefly stated, the facts of the case are that the assessee is a Hindu undivided family. The capital of the business of the family was divided among the karta, Shri Keshrimal, and his five sons. The assessee claimed this division as a family arrangement. The order of the Tribunal went against the assessee and the application submitted under Section 256(1) of the Act was dismissed as regards the order passed in I.T.A. No. 743/ Ind/85 (Misc. Civil Case No, 120 of 1989) and the applications submitted under Section 256(1) of the Act, as regards the order passed in I.T.A. Nos. 59 and 60/Ind/85, were allowed only in part to the extent of one question as quoted above (Misc. Civil Case No. 578 of 1992). Aggrieved, the applicant has filed these two applications for different assessment years, i.e., 1980-81 (Misc. Civil Case No. 120 of 1989) and 1981-82 and 1982-83 (Misc. Civil Case No. 578 of 1992). 5. We have heard Shri P.M. Choudhary, learned counsel for the applicant and Shri Patharekar, Income-tax Officer, on behalf of the non-applicant/Department, in both these cases. 6. In Misc. Civil Case No. 120 of 1989 as many as four questions were proposed before the Tribunal and are reiterated in this application. However, counsel for the applicant submitted that only question No. (i), as noted above, will be sufficient as according to him this question will cover the entire controversy as posed and projected via the remaining three questions, as noted above. Similarly as regards Misc. However, counsel for the applicant submitted that only question No. (i), as noted above, will be sufficient as according to him this question will cover the entire controversy as posed and projected via the remaining three questions, as noted above. Similarly as regards Misc. Civil Case No. 578 of 1992, although as many as eight questions are proposed, counsel for the applicant submitted that only question No. (ii), as noted above, will be sufficient and in his view the entire controversy as covered and reflected, via remaining questions No. (i) and (iii) to (viii) will stand covered under the aforesaid question No. (ii). 7. Counsel for the applicant, thus, submitted that only question No. (i) in Misc. Civil Case No. 120 of 1989 and question No. (ii) in Misc. Civil Case No. 578 of 1992 may be considered in these two cases. 8. Section 171(9) of the Act, inserted by the Finance (No, 2) Act, 1980, with effect from April 1, 1980, provides as under : " (9) Notwithstanding anything contained in the foregoing provisions of this section, where a partial partition has taken place after the 31st day of December, 1978, among the members of a Hindu undivided family hitherto assessed as undivided, -- (a) no claim that such partial partition has taken place shall be inquired into under Sub-section (2) and no finding shall be recorded under Sub-section (3) that such partial partition had taken place and any finding recorded under Sub-section (3) to that effect whether before or after the 18th day of June, 1980, being the date of introduction of the Finance (No. 2) Bill, 1980, shall be null and void ; (b) such family shall continue to be liable to be assessed under this Act as if no such partial partition had taken place ; (c) each member or group of members of such family immediately before such partial partition and the family shall be jointly and severally liable for any tax, penalty, interest, fine or other sum payable under this Act by the family in respect of any period, whether before or after such partial partition ; (d) the several liability of any member or group of members aforesaid shall be computed according to the portion of the joint family property allotted to him or it at such partial partition, and the provisions of this Act shall apply accordingly. Explanation. Explanation. -- In this section, - (a) 'partition' means - (i) where the property admits of a physical division, a physical, division of the property, but a physical division of the income without a physical division of the property producing the income shall not be deemed to be a partition ; or (ii) where the property does not admit of a physical division, then such division as the property admits of, but a mere severance of status shall not be deemed to be a partition ; (b) 'partial partition ' means a partition which is partial as regards the persons constituting the Hindu undivided family, or the properties belonging to the Hindu undivided family, or both." 9. The question for consideration is as to whether the Tribunal was justified in the conclusion that the family arrangement, as settled, amounted to a partial partition in terms of Section 171(9) of the Act and whether the Tribunal was further justified in ignoring the decision rendered by the High Court of Madras ? 10. As we are directing the Tribunal to state the cases and refer the aforesaid two questions, as noted above, we do not deem it proper to express any final opinion one way or the other at this stage. Suffice it to say that the case is made out for calling upon the Tribunal to state the cases and refer one question each in both these cases as particularised above. 11. We have taken this view because in our view it is necessary to consider and answer whether the family arrangement amounts to a partial partition in terms of the Act or not. 12. In the result, we allow these miscellaneous civil cases in part and call upon the Tribunal to state the cases and refer the aforesaid question in each case as expeditiously as possible for our consideration and opinion. 13. We, however, make no orders as to costs. 14. Transmit a copy of this order to the Tribunal for compliance. 15. Retain this order in the record of Miscellaneous Civil No. 120 of 1989 and place its copy in the record of Miscellaneous Civil Case No. 578 of 1992 for ready reference.