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TMI Blog1987 (6) TMI 101X X X X Extracts X X X X X X X X Extracts X X X X ..... ion Shri Markandeya's wife Smt. Sita Mahalakshmi was also given a share. A memorandum was executed on 24-12-1978 to record the oral partition giving one fourth share to each of them. It was agreed between the dividing members that the amount of compensation would be divided equally between Shri Markandeya, his wife and two minor children. The Income - tax Officer accepted the assessee's claim of partition dividing the property into four shares and thus computed the income. Subsequently the Commissioner of Income-tax invoked the provisions of section 263 in respect of these three assessee. In response to the notice issued under section 263 they filed their objections. The Commissioner in his order dated 29-3-1985 held that according to South ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... representative strongly urged that under the Southern School of Mitakshara Law the wife is not entitled to a share at the time of partition. Hence the allotment of one-fourth share to Shri Markandeya's wife is not valid and the Income-tax Officer should the order was erroneous and prejudicial to the interests of revenue, the Commissioner of Income-tax was justified in invoking the provisions of section 263. Thus he supported the order of the Commissioner of Income-tax. 4. We have considered the rival submissions. In Pallamreddi Audemma v. Pallamreddy Varadareddy AIR 1949 Mad. 31 at page 35, the Madras High Court held as under : "..... It may be pointed out that at one time under the law of the Mitakshara a Hindu mother was, at the part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tled that a Hindu female is entitled to be maintained and if at the time of the partition of the Hindu joint family some reasonable provision has been made towards the maintenance of the female it cannot be considered to be a gift though a Hindu female is not entitled to a share. In our view the share allotted to the assessee's wife Smt. Sita Mahalakshmi has to be treated as allotment made in lieu of her maintenance. It is more of a family settlement and she has been given a share equal to that of her son towards her maintenance though she is not entitled to a share as such. The one-fourth share allotted to her cannot be considered as excessive as it is equal to a share allotted to her son. In S. Pathy v. GTO [1983] 15 Taxman 129 (Mad. -Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of partition and that was held to be valid. In Pallamreddi Audemma's case, which we have already referred to earlier, the Madras High Court held that the practice of allotting share upon partition to females has long become obsolete in Southern India and that the right survives only as a right for provision of maintenance which must not in any case exceed the share of her son. 5. In our view the share allotted to the assessee's wife Smt. Sita Mahalakshmi was towards her maintenance though she was not entitled to a share in the family properties. So one-fourth share allotted to her should be treated as allotment made to her in lieu of maintenance. Hence the Income-tax Officer was right in taking one-fourth share in the capital gain in resp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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