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TMI Blog1977 (10) TMI 59X X X X Extracts X X X X X X X X Extracts X X X X ..... cument styled deed of partition was entered into between the father and the three sons Jagannath, Kanhiyalal and Badrinarayan. This document recites that the father and the sons constituted a joint mitakshare Hindu family and that Shiw Prasad, the first son had already taken out his share from the joint family by a registered deed dt. 12th April, 1939 and that he has no interest in the properties which were partitioned under this document. Shri Badrinarayan, the assessee before us was allotted the property being land and building in holding No. 68 in Farkating Road. Golaghat. On being called upon to do so, the father filed a gift-tax return and was assessed to gift-tax in respect of this partition deed. The income from the property allotted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsent decree in title suit No. 124 of 1971 in the Court of the subordinate Judge, Arrah, by which the second and third sons were granted share in certain properties which were not the subject matter of the partition deed dt. 19th April, 1960. He called for the comments of the ITO and after hearing him he concluded that the assessee s claim was baseless and that the assessee had not received the property on behalf of the HUF. He, therefore, confirmed the assessments. 5. In the further appeals before us, it was contended on behalf of the assessee that even though there was no evidence of any ancestral nucleus, the properties must be considered to have been impressed with the character of joint family property by the father himself when gav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he partition deed was in reality only a gift deed and could not amount to throwing the property in the family hotch-pot. It was submitted that the assessment of gift-tax supported such an inference. It was also contended that the assessee himself was aware that he was receiving the property absolutely as his own in his individual capacity as was seen by his own conduct in showing the income therefrom in his return as that of an individual and not that of an HUF. It was submitted that the claim in the asst. yr. 1972-73 after being assessed as an individual for more than a decade was an after thought and was not acceptable. It was submitted that in the circumstances, the orders of the authorities below should be confirmed. 7. On a careful c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ip deed was accepted as enough to establish the impression of joint family character on the separate property of a co-parcener. Similarly, the declaration in the Income-tax returns were accepted as enough evidence in the case of Thakur Hari Sigh (1967) 65 ITR 267, Gundapalli Mohan Rao Ors. vs. Gundlappalli Satyanarayan Ors. (1972) 84 ITR 685) and Autoways (India) (1976) CTR (Ori) 9 : (1976) 102 ITR 761 (Ori). We must, therefore, see whether the circumstances of the present case lead to a similar inference. 8. We find from the deed of partition which was signed by the father that there was a clear recital that the properties which were the subject matter of the partition on 19th April, 1960, were joint fmaiy properties. There is thus a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... status of the individual for more than a decade before claiming the status of an HUF. According to the Revenue this claim is an after though but according to the assessee it is only a rectification of a mistake made in the earlier assessment years. We find that though the claim was belated it cannot be disallowed on this ground. This is because of our finding that what was received on partition was joint family property having being declared as such by the father before the partition. Since the property was received by the assessee by virtue or his being son, the mode of transaction affirmed its character as joint family property in his hands also. As pointed out by the Supreme Court in the case of N.V. Narendranath, the property which is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he guarantor really wanted to make a gift of the properties to his son or the apparent gift was only an integral part of the scheme to partition the same. In the present case this question has to be answered in favour of the assessee as the very language of the document indicate that the intention was to partition the property rather than to make over the property as a gift. This is also in contrast to an action of the father in making a separate gift of another property on 5th Aug., 1971 which is being returned by the assessee as being assessable in his individual hands. Since the said document can be considered only as a partition deed and not as a gift-deed it is unnecessary to consider whether as a gift-deed it contained any limitation ..... X X X X Extracts X X X X X X X X Extracts X X X X
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