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TMI Blog1994 (8) TMI 79X X X X Extracts X X X X X X X X Extracts X X X X ..... ad been given to him on account of his rendering overseas services. The said two plots were statgd to have been partitioned among the following members of the HUF of Lt. Col. Bakhtwar Singh on 31st March, 1964 orally, and subsequently on 26th June, 1965 a memorandum of the oral partition was made in writing amongst. (1) Lt. Col. Bakhtwar Singh - Self (2) Smt. Sambhu Kanwar - Wife (3) Shri Raghunath Singh - Son (4) Shri Dinesh Singh - Son It is alleged that in the family partition, plot No. 207C fell to the lots of Lt. Col. Bakhtwar singh and his wife Smt. Sambhu Kanwar with equal shares and plot No. 214C fell to the lots of Shri Raghunath Singh and Shri Dinesh Singh with equal shares. It is also stated that with the funds advanced by Lt. Col. Bakhtwar Singh to his two sons a house was constructed by them in the year 1977 with an investment of Rs. 51,000. During the accounting period relevant to the asst. yr. 1986-87, which is under consideration in all the three appeals, the four plots, as had been allegedly partitioned between the four members of the HUF of Ltd. Col. Bakhtwar Singh, together with the structures raised thereupon were sold as per details below:-- (1) Lt. C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng benefits from the partitioned property in their HUF/individual capacities. Since Shri Raghunath Singh was in active service of Indian Army and Shri Dinesh singh was not well acquainted with the matters relating to immovable properties, an account was opened in the joint names of all the three appellants wherein the sale proceeds of the plots and the constructions sold was put. Subsequently, investments in purchase of immovable properties and other Govt. securities were also made by the individual members in their respective names with the funds withdrawn from the joint account. The appellants further submitted before the learned CIT(A) that the computation of the capital gain as made in their respective hands was not correct and that deductions under ss. 53, 54E, 54F and 80T were not given to them as per relevant provisions of the law. The learned CIT(A) did not accept assessee's contentions regarding either the character of the two plots as being HUF property or the partition thereof amongst the father and the sons. He agreed with the ITO that the two plots belonged to Shri Bakhtwar Singh, the father-assessee and that the same was not his HUF property and was also never partiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f agricultural land and vacant plot Nos. 207C and 214C were HUF properties. It was thus submitted that not only the said plots were acquired with HUF funds but also that they were all along treated by Shri Bakhtwar Singh as the properties of his HUF and not his individual properties. The learned Departmental Representative on the other hand submitted that the two plots had been acquired by Shri Bakhtwar Singh in the capacity of an individual from the erstwhile State of Mewar and the Pattas were issued in his individual name. Therefore, the two plots have been rightly adjudged as his individual property and not the property of his HUF. 8. We have given due consideration to the arguments advanced before us. After having studied the material placed before us, we are of the opinion that the issue in the point has not correctly been appreciated by the IT authorities. It is an established fact that the bigger HUF of Shri Bakhtwar Singh was possessed of sufficient agricultural land and that the partition of the HUF of his father had taken place sometime in June, 1946, and in such family partition about 50 bighas of agricultural land had fallen to the lot of Shri Bakhtwar singh., Shri Bak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pacity, he had enclosed a detailed statement of assets which he had claimed to be not taxable. In the said statement, the two plots had clearly been mentioned as properties belonging to his HUF and hence not taxable in the hands of assessee. The WTO had completed the assessment on 19th Sept., 1974 in the individual case of Shri Bakhtwar Singh and therein he had clearly mentioned that the assessee owned only one immovable property at 109, Bhopalpura, Udaipur. That means that the WTO had accepted the position that the agricultural land, one house, two shops situated at village Jagat and the vacant plot Nos. 207C and 214C situated at Fatehpura Extension Scheme, Sardarpura, Udaipur, belonged to the HUF of Shri Bakhtwar Singh and not to him in individual status. All these documents were prepared before the arising of the present controversy and since they contain statement of Shri Bakhtwar Singh against his own interest, they are required to be given due value and weight. 9. That apart, Shri Bakhtwar Singh had filed the required statement before the land & building tax authorities on 29th June, 1973. In that statement he had clearly mentioned that the plots in question belonged to his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceeds of the properties sold by Shri Bakhtwar Singh's HUF, his wife Smt. Sambhu Kanwar, his sons S/Shri Raghunath Singh's HUF and Shri Dinesh Singh was kept in a joint account. Since Shri Dinesh Singh was kept in a joint account. Since Shri Raghunath Singh, the elder son of Shri Bakhtwar Singh remained out of Udaipur for the reason that he was an army officer and further that Shri Dinesh Singh was not much acquainted with the affairs, the money was kept in the joint account at the disposal of Shri Bakhtwar Singh. The sale proceeds of the properties was accordingly utilised in making investments in Units, NSCs, purchase and construction of new houses in the individual names of the joint account-holders. The learned Departmental Representative, on the other hand, submitted that the evidence adduced in support of the alleged partition was not at all convincing and that the same was self-contradictory. It was submitted that by his own conduct Shri Bakhtwar Singh had contradicted that the plots in question were ever partitioned in the year 1964 or such alleged partition was ever acted upon. On study of the material placed before us, we feel inclined to agree with the learned Departm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... again represented that the said two plots belonged to his HUF and he had verified that fact as the manager of his HUF. On enquiry made by the officer of the land & building tax department, the said two plots were found as belonging to the HUF of Shri Bakhtwar Singh who had verified that fact in his capacity as manager of his HUF as late as on 17th Oct., 1974. These facts clearly show that the partition alleged to have been effected on 31st March, 1964 and memorandum of which is alleged to have been prepared on 26th June, 1965 was not acted upon by the parties concerned. The two plots were all along treated as the property of HUF of Shri Bakhtwar Singh and were assessed as such by the concerned authorities. 14. The electricity connections obtained in the names of Shri Raghunath Singh and Shri Dinesh Singh are no proof of the fact that the premises for which the said connections were applied for/obtained, if at all, belonged to them. Electricity connections may be obtained by the occupants of the premises provided the conditions laid down by the Electricity Act are fulfilled. It was not shown to us that for obtaining the electricity connections the applicant should also be the owner ..... X X X X Extracts X X X X X X X X Extracts X X X X
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