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TMI Blog2000 (11) TMI 295X X X X Extracts X X X X X X X X Extracts X X X X ..... on merits. 4. We have heard the arguments of both the sides and also perused the records. 5. We first take up the appeals of the Revenue being WTA Nos. 153/Jp/1994 to 159/Jp/1994 in the above seven appeals for the seven asst. yrs. 1984-85 to 1990-91. The Revenue has raised the following common ground: "On the facts and in the circumstances of the case the learned CWT(A) has erred in holding the assessment made under s. 16(3) as void by observing that the HUF consisted of two members and one of the members having died on 9th May, 1991. As such the HUF had not existed when the assessment was made, ignoring the fact that for the WT proceedings valuation date is relevant and on the relevant valuation date the HUF was very much existing and, therefore, assessment made subsequently was valid one". The learned Departmental Representative of Revenue has contended that the death of one member of the family out of two members took place on 5th Sept., 1991, whereas the valuation date for the last assessment year (asst. yr. 1990-91) involved in these appeals being 31st March, 1990, none of these assessment years, gets affected by the said event of death on 5th Sept., 1991. He has cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon'ble Karnataka High Court, and that the said judgment was followed in income-tax case also. He has referred to the order of Bangalore Tribunal in Asstt. CIT vs. Nanjappa (HUF) (2000) 69 TTJ (Bang) 911 : (2000) 74 ITD 407 (Bang) . He has contended that the assessee's HUF consisted of two members, that is, Karta Durlabhlal and his wife Shyama Devi. He has contended that they had one daughter who was married as long back as the year 1975. He has contended that for the purpose of making valid assessment/reassessment, the date of assessment/reassessment is material and on that date HUF of assessee was not existing. He has contended that WT Act provides machinery for assessing LRs of individuals but not in the case of an HUF. He has also contended that in this case the issue regarding the character of property is not involved. 7. In the rejoinder, the learned Departmental Representative of Revenue has referred to s. 19(2) of the WT Act and contended that the said provision provides for the assessment of net wealth of a deceased-assessee, being an individual, to be made in the hands of the LRs of the deceased individual assessee. He has contended that so far as HUF and company are c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proper appreciation of the issue, it will be desirable to clarify some concepts of Hindu law being relevant in the matter in hand. Here, we will discuss/elaborate the Hindu law as per the Mitakshara School being the law prevalent in almost all the parts of India except West Bengal where Dayabhaga School of Hindu law is followed which is also known as the Bengal School of Law. Under the Mitakshara School of Hindu law there are two distinct concepts being of (i) "A Joint Hindu family" and (ii) "A Hindu coparcenary". So far as the concept of "Joint Hindu family" or an "HUF" under Hindu law is concerned, it simply means a Hindu family consisting of all persons lineally descended from a common male ancestor together with their wives and unmarried daughters. Thus, the term "Family" signifies group of people or plurality of members mutually related by blood or by marriage or by adoption. Neither is it necessary that there must be two existing male members to constitute a Hindu joint family nor is it necessary that there must be at least one existing male member in the family to constitute a Hindu joint family. Under this system of Hindu law, even two females may constitute a joint Hindu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this being that member's self-acquired property but thrown into the common hotchpot and thus blended therewith; (iv) Joint acquisitions with the aid of joint family property. 12.1. It may be noted that in the coparcenary property or in the joint family property of a coparcenary, the male issue of coparcenars acquire an interest by birth; and every coparcener has a joint interest and a joint possession. On the death of a coparcener his interest in the coparcenary property devolves on other members of coparcenary by survivorship and does not pass to his heirs by succession. 12.2. We may, in short, also mention here that under Dayabhaga School of Hindu law, which prevails in Bengal, the sons do not acquire an interest by birth in ancestral/joint property. Their rights arise for the first time on father's death whereupon they take the deceased father's property, whether ancestral or separate, as heirs and not by survivorship. Inasmuch as the sons do not acquire any interest in ancestral property in their father's lifetime, so during father's lifetime there can be no coparcenary in the strict sense of the word between a father and sons under Dayabhaga School of Hindu law. Under th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on partition of Hindu coparcenary or otherwise becomes a sole surviving coparcener. The coparcenary property, which falls to the share of a partitioned coparcener or of a sole surviving coparcener, and if he remains a single person alone, then it practically becomes his absolute individual property (separate property) for the time being till this coparcener adopts a son or makes marriage wherefrom male offspring may result. Till such birth/adoption of a son, the coparcenary property of such single partitioned coparcener remaining alone or a sole surviving coparcener remaining alone, the coparcenary property falling to his share on partition or due to survivorship will remain his absolute separate individual property and taxable as such. Such property cannot accordingly be assessed as HUF property. 16.3. However, if a Hindu coparcener, who receives his share of the coparcenary property on partition by separating from his father, brothers, or other coparceners also has his own coparcenary, he being joint with his male issues, then the property falling to his share on partition will be his ancestral property as regards his male issues who acquire an interest in it by birth whether t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... persons. No doubt, once a property is HUF property, it retains its character as such till HUF is brought to end by partition or it comes to an end due to there remaining in existence only one single person and there being no other person in existence to comprise with him a "family". Accordingly the property which, though was originally HUF property in character but the property shed off its character of said jointness due to the family having been reduced to one single person. In that view of the matter, on 26th March, 1992, as also on 12th March, 1993, the relevant dates of reassessments involved in these appeals under consideration there was no family of Shri. Durlabhlal in existence, and in turn no HUF. There not being the situation of there being any son through birth or adoption, the question of the property, which had fallen to the share of Shri. Durlabhlal which was originally joint family property, to retain its characters as such also does not arise in the circumstances. 19. In 101 CTR (Kar) 1 : 60 Taxman 521 (Kar) the Hon'ble Karnataka High Court has held that there is no provision in the WT Act, 1957, to make assessment on erstwhile HUF which ceased to exist after fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /Jd/1998 to 33/Jd/1998. The assessee-respondent has taken as many as seven common grounds in his COs. Ground No.- 7 is general. Ground Nos. 1 and 2 of CO pertain to various substantive grounds taken by the assessee-respondent before the first appellate authority in his appeal but copy of those substantive grounds have not been placed on record before us and so we are not in a position to appreciate as to what exactly were those substantive grounds which the assessee had raised before the first appellate authority. Ground No. 3 of CO also comprises a challenge to legality and propriety of various proceedings and as this concerns the legality and elaborate arguments have been raised before us on this count together with placing copy of order of the first appellate authority in the case of Govind Lal so may look into this ground in its limited aspect. 21. The learned authorised representative of assessee has contended that for asst. yrs. 1984-85 to 1988-89 all materials were already disclosed on record and there was no non-disclosure of any material fact and so there was no valid reason for reopening assessments for the above assessment years. He has furnished a copy of the order of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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