9911796707
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Issues:
1. Interpretation of the second proviso to sub-section (1) of section 12B regarding taxation of capital gains. 2. Determination of possession criteria for the applicability of the proviso. 3. Analysis of juridical possession versus actual possession in the context of joint family property. 4. Consideration of the intention of the Legislature in enacting the taxing statute. 5. Examination of whether a Hindu undivided family can be categorized as a "parent" under the proviso. The judgment delves into the interpretation of the second proviso to sub-section (1) of section 12B concerning the taxation of capital gains. The proviso exempts an assessee from tax liability if specific conditions are met, including possession of the property for at least seven years. The case involves a property that was joint family property, with the assessee and his sons as coparceners. The critical issue is whether the assessee's possession during the joint family period qualifies as possession for the purpose of the proviso. The court emphasizes the distinction between juridical possession and actual possession, asserting that the possession contemplated by the proviso is juridical. It concludes that the assessee's joint possession with his sons does not fulfill the possession requirement under the proviso. The judgment explores the concept of juridical possession versus actual possession in the context of joint family property. It clarifies that under Hindu law, all coparceners have ownership and entitlement to possession of joint family property. The court highlights that the possession referred to in the proviso must be exclusive possession, which the assessee did not have during the joint family period. The analysis underscores the legislative intent behind the provision, focusing on the requirement of exclusive possession by the assessee or the parent for tax exemption. Furthermore, the judgment reflects on the intention of the Legislature in enacting the taxing statute. It acknowledges the hardships faced by the assessee due to the strict interpretation of the provision but emphasizes that legislative amendments are necessary to address such issues. The court underscores the importance of adhering to the clear construction of the law, even if it leads to unfavorable outcomes for certain taxpayers. Additionally, the judgment addresses the argument regarding whether a Hindu undivided family can be considered a "parent" under the proviso. The court dismisses this contention, stating that the sons of the assessee cannot be transformed into parents for the purpose of the proviso. Ultimately, the court agrees with the Tribunal's decision that the assessee does not meet the requirements of the proviso, leading to a negative response to the question posed. The assessee is directed to bear the costs of the proceedings.
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