These are appeals against orders of Commissioner made under section 263 of Income-tax Act, 1961 ('the Act') for assessment year 1983- 84 in case of Shri V. Govindaiah and his minor son Shri V.V. Madhav. 2. Shri V. Govindaiah and his minor son Shri V.V. Madhav constituted joint family. Shri V. Govindaiah was partner representing his HUF in two firms, viz., V. Veeraiah and Padma Finance Corpn. On 1-4-1979 partition was effected between Shri V. Govindaiah and his minor son whereby movable and immovable properties were divided between them. As per clause 4 of partition deed it was provided that net capital of HUF standing in above two firms should continue to stand in name of Shri Govindaiah. But each of divided members would be individually and equally entitled to rights and responsibilities and to share of profits/losses in said firms and out of share of profit 50 per cent thereof should be allocated to minor son Shri Madhav. As per clause 7 of partition deed half share of profit relating to Shri Madhav will be charge upon net capital standing in name of Shri Govindaiah. ITO made separate assessments for 1983-84 in respect of share income received from V. Veeraiah in hands of Shri Govindaiah and minor son Shri Madhav represented by his father Shri Govindaiah. Commissioner was of view that two assessment orders are erroneous and prejudicial to interests of revenue. He issued notice under section 263 in response to which objections were filed. After considering objections, Commissioner passed separate orders in two cases directing ITO to assess income from V. Veeraiah in status of 'body of individuals'. He set aside separate assessments made on Shri Govindaiah and his minor son Shri Madhav for assessment year 1983-84 with direction t o redo same in accordance with law. Against above orders, these appeals are preferred. 3. learned counsel for assessee kly urged that decision of Andhra Pradesh High Court in CIT v. Pabbati Shankaraiah [1984] 145 ITR 702 would squarely apply as facts are identical. In view of that orders of Commissioner should be cancelled. He further urged that there is overriding title in view of clauses in partition deed and so there is diversion of income from inception. He kly urged that Shri Govindaiah is assessed in status of HUF and his minor as individual and so there cannot be BOI between them. learned departmental representative submitted that decision of Andhra Pradesh High Court in Pabbati Shankaraiah's case (supra) is not applicable to instant case but decision in Deccan Wine & General Stores v. CIT [1977] 106 ITR 111 (AP) would apply. He also relied on t h e decision of Andhra Pradesh High Court in CIT v. Sanka Sankaraiah [1978] 113 ITR 313. Thus he supported orders of Commissioner. 4. We have considered rival submissions. There was partition of movable and immovable properties between Shri Govindaiah and his minor son Shri Madhav on 1-4-1971. Under clause 6 of partition deed it is stated that Shri Govindaiah shall receive profits from firm V. Veeraiah on behalf of both father and minor son. Under clause 7 out of profits half share belonging to minor son Shri Madhav shall be charge upon net capital standing in name of Shri Govindaiah in two firms. Thus, it is clear from above clauses that minor son Shri Madhav was entitled to 50 per cent out of profits received by Shri Govindaiah from two firms and there was charge upon net capital in respect of half share belonging to minor. Thus there was overriding title from inception. On above facts decision of Andhra Pradesh High Court in Pabbati Shankaraiah's case (supra) would squarely apply. In this case S, karta, was partner in firm having 30 per cent share in it. There was partial partition in family in 1963 i n respect of interest of family in firm and division was effected by allotting 12 per cent share to S and 6 per cent to each of his three sons. It was agreed that S would continue to be partner and profit derived would be divided by himself and his three sons. S's major son was also taken in as partner in firm. On those facts, Andhra Pradesh High Court held that S and his two minor sons did not constitute BOI and S would be holding income received by him as constructive trustee in favour of two minor sons for whose benefit he held it and that agreement created overriding obligation on S to make over income in favour of minors which was not assessable in hands of assessee. facts of above case are almost identical to facts of instant case. learned departmental representative pointed out that subsequently firm was dissolved and Shri Govindaiah carried on business as proprietor and so above decision is not applicable. In our view that does not make any difference as clause 5 of partition deed makes it clear that if firms are dissolved or if business of firm is continued in name of Shri Govindaiah as sole proprietor, Shri Govindaiah and his minor son Shri Madhav should be equally and individually entitled to rights and responsibilities and profits/losses arising in name of Shri Govindaiah. So this clause would take care of position even if business is carried on by Shri Govindaiah as proprietor. decision in Deccan Wine & General Stores' case (supra) has been considered in above decision. Following with respect above decision, we hold that Commissioner was not justified in directing ITO to assess income from V. Veeraiah in status of 'body of individuals', as no BOI existed between Shri Govindaiah and his minor son Shri Madhav. Further in view of clause 7 of partition deed there is overriding title upon net capital standing in name of Shri Govindaiah in respect of half share of profit belonging to his minor son Shri Madhav, and there was superior title in favour of minor son. Thus ITO was perfectly justified in making two separate assessments on Shri Govindaiah and his minor son Shri Madhav. Commissioner was not justified in invoking provisions of section 263 for setting aside assessments. decision of Andhra Pradesh High Court in Sanka Sankaraiah's case (supra) has no application as that is case under section 64 of Act. It was held therein that share income from firm derived by wife and minor children cannot be included in individual assessment of partner under section 64, where person is partner representing HUF. Thus, we cancel orders of Commissioner made under section 263 in case of Shri V. Govindaiah and his minor son Shri V.V. Madhav. 5. In result, appeals are allowed. *** V. GOVINDAIAH v. INCOME TAX OFFICER