9911796707
TMI Blog1982 (5) TMI 112X X X X Extracts X X X X X X X X Extracts X X X X ..... . On appeal, the AAC confirmed this conclusion, rejecting the assessee's contention that the property had been purchased out of the business income started with the ancestral capital. The assessee has come up in second appeal before us. 2. We have heard the representatives of the parties at length in this appeal. In the first instance, reference was made by the assessee's representative to s. 6 of the Hindu Succession Act, according to which: "When a male Hindu dies after the commencement of this Act, having at the time of his death the interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upto surviving members of the coparcenary and not in accordance with this Act." At page 455 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under this Act. And if suppose, the joint family had 90 units of property, and the divided son had separated taking 30 units, the joint family was left with 60 units of property at the time of the death of the father of this the father would have been entitled to only 30 units if there was a partition just prior to his death, and, therefore, only this 30 units of property which is to devolve in accordance with the Act, will be shared equally by three heirs, the widow, the undivided son, and the daughter, each getting 10 units of property. Thus, the widow would get 10 units, the undivided son 40 units and the daughter 10 units of property. In fact s. 6 preserves the doctrine of acquisition of right by birth and the right of survivorship. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l), which lays down that under s. 8 of the Hindu Succession Act, the property of the father, who died intestate, devolved on his son in his individual capacity and not as the Karta of his own family. It was argued that this question had been thoroughly considered by this very Bench of the Tribunal in ITA Nos. 45, 48 and 49/Ind/81, wherein after a detailed discussion on the subject, it was held that income from the estate of the deceased was to be assessed in the hands of the legal heirs individually and not otherwise. 4. After carefully considering all the facts and circumstances of the case, we are inclined to agree with the assessee. So far as the Allahabad decision in (1974) 95 ITR 634 (All) is concerned, in that case there has been a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... viso to s. 6 of Hindu Succession Act, according to which if the deceased had left a surviving female relative specified in cl. (1) of the Schedule or a male relative claiming through such female relative, the interest of the deceased in the Mitakshara corparcener property would devolve by testamentary under this Act and not by survivorship. Sec. 6 would not, however, come into play when the first part of s.6 of the Hindu Succession Act is applicable. We are, therefore, of the opinion that if the property purchased by the father of the assessee was not inherited by the assessee along with any other female relative of the kind mentioned in Class of Schedule to the Hindu Succession Act, it can naturally be treated as HUF property in the family ..... X X X X Extracts X X X X X X X X Extracts X X X X
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