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TMI Blog1983 (9) TMI 147X X X X Extracts X X X X X X X X Extracts X X X X ..... d at Rs. 2,89,980. On that date there was a partition in the HUF to the extent that the whole invested capital was partitioned among the members of the bigger HUF. However, Smt. Premwati, Malaiya, wife of Shri V.K. Malaiya, though she accepted the partition did not take any share. The rest five members got Rs. 72,495 each. Subsequent to the partition, Shri V.K. Malaiya continued to remain a partner in the firm but claimed the status of a smaller HUF contending that even after the said partition, his wife, Smt. Premwati Malaiya, remained joint with him forming a smaller HUF as there was still an obligation on the husband to maintain her. The WTO, however, was of the opinion that since Smt. Premwati Malaiya had duly accepted the partition and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jecting his claim for status of HUF. He, therefore, upheld the inclusion of the capital amount of Rs. 65,000 in the individual assessment of the assessee. Simultaneously, he cancelled the protective assessments made in the hands of the HUF of which the assessee was alleged to be karta. 4. WT Appeal No. 167 has been filed by the assessee in his individual capacity against the order of the AAC upholding the inclusion of the share of capital in his individual assessment. WT Appeal Nos. 147 and 148 have been filed by the department against the cancellation of the protective assessments made by the WTO on the HUF and WT Appeal Nos. 163 and 164 have been filed by the assessee in his capacity as the karta of the HUF which is again directed again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s wife because that was not the question directly involved therein, rather it has been specifically mentioned in the judgment that the deceased and his wife could constitute a HUF. 6. Now, as regards a family consisting of an assessee and his wife reference on behalf of the revenue has been made to a decision of the Madhya Pradesh High Court in CIT v. Dhannamal [1983] 12 Taxman 59, but in this case the wife had been allotted a share in the partition and the ground of holding that the husband was liable to be assessed in respect of his own share obtained at the time of partition as an individual and not as a HUF was only because the wife had been granted a share. Their Lordships specifically observed that had the wife not been allotted any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hoose to remain a member of the family qua this capital. Since she still continued to live with her husband, the latter was, in our opinion, justified in claiming the status of a HUF qua the share allotted to him at the time of partition. If the partition was between him and his brothers, naturally, he would constitute a HUF along with his wife. So the crucial test is the lady's getting a share and not her inclination to do so. She has not got a share. She can certainly be a member of the family qua the property in which the share had not been granted to her. She may have chosen to be joint and did not want the disruption of the family. Though the point is not absolutely free from difficulty considering the trend of all over authorities on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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