9911796707
TMI Blog1978 (9) TMI 112X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee's contention. Hence, these appeals are before us. 2. The assessee Shri Adaikappa Chettiar got partitioned from this father and his only son OAA Ananthapadmanabhan Chettiar under deed of partition dared 13th April, 1953, Subsequently the assessee was assessed in respect of the properties that fell to his share on the above partition in the status of "individual", Later the status was taken as HUF since the assessee was deriving income form ancestral property of the Asst. yr. 1973-74. In the assessment proceedings for the years under appeal the assessee had filed an affidavit before the ITO which reads as follows: "I, A.R. Adaikappa Chettiar, aged about 71 do hereby solemnly and sincerely declare as follows; I got partitioned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ual' along with my letter dt. 5th Feb., 75., in the position that he himself and his wife have been living separately under an understanding to live apart, though not by legal separation and also in the position that he was previously assessed only as an 'Individual' and that he got separated from his only son OAA Ananthapadmanabhan Chettiar on 13th April, 53., in regular partition under the old Act (s. 25A of the 1922 Act). 2. I do not think a further reference to the wife of the assessee is necessary with regard to the above affidavit for establishing whether the assessee in an 'individual'. I refer the latest decision of the Supreme Court (1976) 101 ITR page 776 1976 CTR (SC) Surjit Lal Chhabda vs. CIT Bombay. Adaicappa Chettiar can be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee and his wife though it is stated that he was not living with his wife for the past several years. For all legal purposes the wedlock of the assessee and his wife is not severed. The Supreme Court in the case of Narendranath vs. CWT (2) reported in (1969) 74 ITR 190, has clearly laid down the dictum that items of Narendranath case, 74 ITR 190 (SC) a Hindu and his wife would constitute an HUF. On the facts stated above the assessee owning ancestral property and having a wife clearly satisfies the status of an HUF as laid down in the above decision. The learned counsel for the assessee heavily relied upon the decision of the Supreme Court in 101 ITR 776 in support of his submission that the assessee being sole surviving coparcener sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a joint family. Dealing with this question the Supreme Court noticed that Kathoke Lodge was not an asset of pre-existing joint family of which the assessee was a member. It found that the said property became an item of joint family property for the first time when the assessee threw what his separate property was not into the family hotchpot. Since the assessee in that case had no son the Supreme Court observed that Kathoke Lodge was the property of the family after it was thrown into the common stock, but in the eye of Hindu law it would not belong to the family as it would have been if the property had devolved on the assessee as a sole surviving coparcener. From the above observations of the Supreme Court it is clear that if the propert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, Karuppan Chettiar his wife and their subsequently born sons and daughter constituted an HUF, which was the assessee before the High Court. The father Palaniappa Chettiar died on 9th Sept.,1963 leaving behind his widow Anandavalli Achi and Karuppan Chettiar, his son, as legal heirs. The above two persons succeeded to the properties left behind by Palaniappa Chettiar under s. 8 of the Hindu Succession Act and divided the same between themselves. In the assessments made on the assessee. HUF, for the asst. yrs. 1966-67 and 1970-71 the ITO included in the computation of the total income of the assessee family income received from the properties inherited by Karuppan Chettiar from his father Palaniappa Chettiar. The assessee family contended i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... early that it was not so. Their Lordships said that even though the property was the ancestral property of Palaniappa Chettiar by reason of s. 8 of the Hindu Succession Act, Karuppan Chettiar's son would have no interest in the property. Their Lordships said that the provisions of the statute, namely, Hindu Succession Act, would prevail over the provisions of Hindu law. Their Lordships finally concluded that there cannot be any HUF in regard to the property which Karuppan Chettiar got as a result of such succession of his father's property. The point considered by the Full Bench has no relevance to the point at issue before us. In the instant case the assessee has obtained the property not by inheritance, but in a partition between himself ..... X X X X Extracts X X X X X X X X Extracts X X X X
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