A. KALYANASUNDARAM, A.M. These appeal by assessee are directed against order of AAC of IT Bikaner Range, Bikaner. points at issue in all above years as filed by assessee centre around inclusion of amounts representing value of jewellery which had ceased to belong to appellant after partial partition and whether it was justified in treating same as part of total wealth of appellant. Since issue being common in all years, same are being disposed of by means of common order. facts of case are that Shri Lalchand HUF comprised of Karta Lalchand, coparceners Shri Jawahar Lal and Shri Lalit Kaman, sons, wife of Shri Lalchand and mother of Shri Lalchand as members. During previous year relevant to asst. yr. 1975-76 there was partial partition in respect of certain items of jewellery and accordingly one of coparceners Shri Lalit Kumar took portion of his jewellery. assessee while filing return of wealth for asst. yr. 1975-76 onwards, had excluded entire value of jewellery so partially partitioned. WTO, however, only excluded that portion of jewellery which was taken away by Shri Lalit Kaman but included balance of jewellery so partially partitioned in hands of appellant HUF. WTO had apparently included same in appellant HUF's hands on ground that remaining jewellery continued to belong to appellant HUF though one of he coparceners would not be entitled to any share in undivided jewellery. AAC in his order observes that partial partition of part of jewellery was effected during asst. yr. 1975-76, according to which portion of jewellery was given to Shri Lalit Kaman and other members of HUF had retained that portion of jewellery so partitioned jointly. assessee since from year 1976-76 had excluded from its wealth jewellery so partitioned by HUF. assessee had been appealing against inclusion of that portion of jewellery which was retained jointly by other members of HUF excluding Lalit Kaman as assessee HUF's wealth. AAC further observes in his order " It would not be out of place to point out that out of IT Act and WT Act i t is entity which is liable to be taxed and not particular property which is brought to tax. Even after partial partition, jewellery had remained joint, and therefore, in my opinion HUF would continue to be undivided though it is different mater that as result of partial partition one of members had been given some part of jewellery exclusively and only effect of this partial partition would been that in future when contingency arises for partition of HUF properties, consideration would be kept about fact that on of members Shri Lalit Kaman had been give part of Jewellery in past. HUF in law consists of persons linearly descended from common ancestor, and includes their wives and unmarried daughters. Thus, as result of partition there cannot come into existence HUF entities consisting of different combinations. Under IT Act as well as wealth-tax HUF is assessed as entity and not that particular property is assessed. In view of above discussion I am of opinion that even after partial partition of jewellery, jewellery which was not partitioned would be liable to assessed in hands of present appellant HUF." authorised representative before AAC had cited case of Gujarat High Court reported in CIT vs. Shanti Kumar Jagabhai (1976) 105 ITR 795 (Guj) wherein it was held that where jewellery had been partially partitioned, same could not be assessed in hands of bigger HUF. assessee also placed reliance in A. Hanumantha Rao vs. CWT (1967) 65 ITR 586 (AP), CIT vs. M.M. Khanna (1963) 49 ITR 232 (Bom) where it was held that there could be smaller HUF within bigger HUF. Jaipur Bench order reported in Motilal Ramjiwan (HUF) vs. ITO (1984) 18 TTJ 97 (Jp) was also cited where ratio was that partition could not be partial in respect of property as well as in respect of persons. He also cited judgement of Supreme Court in case of Joint Family of Udayan Chinubhai, etc. vs. CIT (1967) 63 ITR 416 (SC) where ratio was that law recognizes smaller HUF within bigger HUF. authorised representative Shri Ranka argued that WTO is admitting fact that partial partition has been effected and that is precisely reason why he has excluded that much jewellery which was taken away by Shri Lalit Kaman from wealth of assessee HUF. He added that WTO's action is so illogical that he excludes portion of jewellery so partitioned among members but includes that portion of jewellery which has been so partitioned but retained by some of members in their joint capacity as wealth of HUF. He further argues that either WTO should have entirely excluded jewellery so partially partitioned or included entire jewellery derecognising partition. facts of case are very clear as Shri Ranka says that partition has been found to be fact. duty of WTO is to assess wealth of HUF as on valuation date and as on valuation date relevant from asst. yr. 1975-76. jewellery so partially partitioned cannot be under any circumstances included as wealth of HUF because it did not remain as HUF's property from date of partial partition. Shri. Ranka further pointed out that AAC accepted this fact and from reading of his order it could only be seen that what he intends to include only that portion of jewellery which was not partitioned as wealth of HUF. Shri Ranka further says that assessee's grievance is not one of inclusion in wealth of assessee HUF which property have not been partitioned at all. But grievance is in respect of inclusion of that portion of property which has been partially partitioned. Shri Rank further argues that it was unnecessary for AAC to go into question of smaller HUF etc., when only question before him was whether in law it would d be right to include jewellery which was partially partitioned among members as wealth of HUF after such partition. Shri Ruhela, ld. Departmental Representative supporting order of WTO and AAC said that Gujarat High Court decision reported in (1976) 105 ITR 795 (Guj) does not apply to facts of case as in that case question before their Lordships was whether lady could claim partition or otherwise. He also cited decision of he Supreme Court in (1982) 26 CTR (SC) 415: (1982) 133 ITR 690 (SC) (supra) where in ratio was in case of HUF partition it must be one of equitable distribution. This Shri Ruhela says point relevant to point in issue as other members are holding jewellery so partially partitioned after Shri Lalit Kumar had taken away his share jointly without defining their shares in jewellery so partially partitioned. He also cited before us Madras Bench Tribunal decision in case of ITO/ WTO vs. Brahadeeswaran N. Srinivasan (1984) 16 TAXMAN 52 (Mad. Trib) (TM) wherein ratio was there must be partition by definite proportion. Shri Rehela also filed this Tribunal's order for asst. yrs. 1975-76 and 1977-78 in he assessee's own case on same issue. After hearing parties and after perusing order of Cuttack Bench of Tribunal in assessee's own case, we feel that facts have been erroneously brought out in order of Tribunal and consequently conclusion which had been based on erroneous facts needs to be reconsidered. For convenience sake, observations of Tribunal are reproduced below: " short question for consideration before us is whether after partial transfer of particular asset is made and one of coperceners is given some share, and remaining members have not divided that property at all whether such property would belong to bigger HUF consisting of all members including one who was given part of it in connection with his marriage or remaining properties would belong to remaining members as smaller HUF. claim of assessee is that remaining jewellery belongs to smaller HUF and not bigger HUF. It is, therefore evident that there has been n o partial partition of jewellery and some jewellery given to Shri Lalchand was not by way of partition, as remaining jewellery according to assessee itself was never partitioned. There cannot be partial partition particularly with reference to asset and coparcencer. In this view of matter we are of opinion that jewellery in question has rightly been included by WTO in net wealth of assessee HUF. In circumstances, we reverse orders of AAC and restore that of ITO." We are of view that short question for consideration in instant case is whether after partition of certain properties of HUF could be included in hands of HUF or not. fact as observed by WTO as well as by AAC which is not disputed at all is that partial partition was effected during previous year relevant to asst. yr. 1975-76. As consequence of this partition one of members Shri Lalit Kaman took portion of jewellery as his share and remaining members held balance jewellery so partially partitioned jointly without defining shares they should be having in jewellery so partitioned. WTO had recognised partition and, therefore, had excluded that portion of jewellery which was taken away by Shri Lalit Kaman. WTO's objection of not excluding jewellery so partially partitioned and held jointly by other members excluding Lalit Kaman was that it would tantamount to formation of smaller HUF and is method of tax avoidance. This is also view taken by AAC. Supreme Court as cited by ld. Authorised representative Shri Ranka in case of Joint Family of Udayan Chinubhai vs. CIT (1967) 63 ITR 416 (SC) recognises fact that there could be smaller HUF within bigger HUF. other Supreme Court judgment cited by Shri Ranka in case of Kalloomal Tapeshwari Prasad (HUF) vs. CIT (1982) 26 CTR (SC) 415: (1982) 133 ITR 690 (SC) had held that after partial partition as regards property, property is held by members of undivided family as divided members with all incidents following therefrom. fiction enacted in s. 171(1) of Act can therefore, operate in such case also because family which has became divided as regards property which is subject matter of partial partition is deemed to continue as owner of that property and recipient of income derived from it, except where and insofar as finding of partition has been given under s. 171. From above mentioned ratio it is very clear that once partition whether partial or full is recognised and has been found as fact it would be members of HUF who would be liable for income and wealth in respect of property so partitioned whether partially or as whole. In instant case partial partition has been found to be fact by WTO. In view of this fact having been found and in view of Supreme Court judgment in (1982) 26 CTR (SC) 415: (1982) 133 ITR 690 (SC) we are of view that jewellery that has been partially partitioned cannot be included in hands of bigger HUF under any circumstances. similar instances has come up before Allahabad High Court in case of Dawrka Nath vs. CWT, U.P. (1966) 62 ITR 304 (All) where their Lordships were faceted with question whether on facts and in circumstances of case sum of Rs. 3 lacs was rightly included in total wealth of assessee HUF for asst. yr. 1959-60. In this particular case partial partition was effected in respect of Rs. 3 lacs of HUF properties and same sum was invested by members. WTO had recognised partition as effected and even AAC accepted this fact. only objection of Department was that this partial partition was effected on valuation date. High Court observed as under: " As it seems not to be in doubt that any asset acquired by valuation date is to be included in assets for calculating net wealth, it means that if asset for calculating net wealth, it means that if asset changes hands twice or thrice or valuation date, it s value will be included in net wealth of two or three assessee. This would be anomalous, same asset being taken into account in computation of net wealth of two or three assessee. This anomaly can be avoided only by holding that net wealth at last moment off valuation date is to be assessed. Finally, we must apply well-known principle of interpretation of taxing statutes that any ambiguity in it must be resolved in favour of t tax payer and that no tax liability should be attached unless law is clear. There is no clear law that net wealth at first moment of valuation date is to be assessed. assessee can be assessed on only one net wealth; it is impossible to assess any one on two net wealths. If there are two net wealths on valuation date, only one of them can be assessed, and neither other nor both. In absence of any law clearly laying down either that higher of amounts should be assessed or that net wealth at particular moment of valuation date should be assessed, lower amount should be assessed. lower net wealth in instant case is that net wealth at last moment of valuation date. If it can be assessed and law does not compel assessment of higher net wealth existing at first moment of valuation date, Court can assess only former." Rom above it becomes very clear that as on valuation date jewellery was not proerty of HUF and as such cannot be included in wealth of HUF. We have already observed earlier that we are compelled to take contrary view to that taken by Cuttack Bench in assessee's own case wherein erroneous facts have been observed. In view of ratio available as cited above and on facts and circumstances of case, we, therefore held that jewellery that was partitioned during asst. yr. 1975-76 account be included as wealth of HUF. Accordingly amount of Rs. 92,763, Rs.1,05,790, Rs. 1,25,242, Rs. 1,68,517 and Rs. 2,08,047 would be deleted from total wealth of assessee HUF. In result assessee's appeals for al years are allowed. *** LALCHAND KOTHARI v. WEALTH-TAX OFFICER