9911796707
TMI Blog1981 (7) TMI 118X X X X Extracts X X X X X X X X Extracts X X X X ..... forward losses for the preceding years to the extent of Rs. 1,63,934. The income relating to the asst. yr. 1975-76 was disclosed at Rs. 28,932. Besides the above the assessee also claimed his status as that of HUF in place of individual shown in the earlier years. It was pleaded by the assessee that he received the property in 1954 under the settlement deed and partnership deed made by his father and since the property so received had the character of ancestral property, he was entitled to be assessed as HUF. But the ITO, not agreeing with the plea of the assessee in respect of the status on the following grounds: 1. The settlement deed written by the father is only a family arrangement and not a partition. 2. The settlor i.e father of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alternative but to resort to the estimate of income from printing and sale of paper. According to the ITO, the assessee disclosed the printing receipts at Rs. 2,00,580 and sale of paper at Rs. 92,921 and charged a net profit of 12.5 per cent on printing and 10 per cent on paper sales. The ITO on verifying the GP from old records notices that the assessee himself had shown for the asst. yr. 1970-71 the GP rate of 26.9 per cent on total receipts (Printing plus sale of papers) and 31.2 per cent for the asst. yr. 1971-72 which was considered to be low by the ITO. Thus, keeping in view the past history and the GP shown in earlier years, the ITO estimated the receipts from sale of paper at Rs. 1,10,000. So far as the application of net profit rat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee, with a view to effect this purchase gave a gift of Rs. 35,000 on 1st April, 1971 and Rs. 5,000 on 5th Oct, 1971 to his wife and as such it was held that the assessee s wife was out of the name of the assessee s wife was out of the funds transferred by the assessee and as such the income from sale of this plot was considered by him under the provisions of s. 64 and thereby the sort term capital gain was worked out by the ITO at Rs. 37,000 which was added to the income of the assessee under the provisions of s. 64, as he took the status for the assessee as Individual. In appeal, the CIT (A) confirmed the order passed by the it so far the application of the provisions of s. 64 of the Act are concerned. Hence this appeal. 5. Heard both ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, the ground raised is rejected. 7. So far as the question of status is concerned, we agree with the ld. counsel for the assessee in view of the property having been received by him by way of family settlement in the year 1954, attained the character of HUF and this is in view of the decision of their lordships of the Bombay High Court reported in AIR 1951 (Bom) wherein an identical case their lordships held as under: "The transaction by which a father makes division of his self-acquired property between his sons is a transaction by which he, in the first instance, effects a reverence of status between his sons; in the second instance, he notional throws into the hotch-potch his self-acquired property and then devised it between his so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the appeal of the assessee and clearly held the income as the income of the HUF constituting of the assessee and his wife. Accordingly we accept the appeal on this ground and direct the ITO to accept the status of the appellant as an HUF. 8. So far as the issues raised in ground Nos. not pressed by the ld. concerned, since the same were not pressed by the ld. counsel for the assessee we confirm the order passed by the CIT (A). 9. In respect of the issue raised ground No. 5 we may observe that since we have hold the status of the assessee as that of HUF the income earned by the assessee s wife on the sale plot could not be added under s. 64 of the IT act to the income of the assessee. Hence, the same is deleted. 10. In the result, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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