9911796707
TMI Blog1982 (7) TMI 209X X X X Extracts X X X X X X X X Extracts X X X X ..... not being capable of physical division by metes and bounds, it was agreed to be enjoyed in common by sharing the income equally. When this partition was placed before the ITO, an order u/s 171 of the IT Act was passed by him on 3rd March, 1976 by which only the partitions with regard to movable property were accepted and the order was silent with regard to the movable property. Since the order stated that only a partial partition has been recognised, the HUF continued to exist in respect of the immovable property. It may be mentioned that the Appellate Tribunal by its order dt. 19th August, 1981, in ITA Nos. 455 and 456/80 upheld the claim of the assessee that as a consequence of the order u/s 171 the income from the property could be asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pinion that the assessee is entitled to succeed. No doubt, the document dt. 1st April 1972 recorded a complete partition between the three coparceners of the joint family and specifically provided that the house property with which we are concerned would thereafter be held by them as tenants-in-common. This portion of that asset has not been accepted by the ITO in order u/s 171 of the IT Act. Therefore, for the purposes of the IT Act to the extent that the partition was not recognised, the HUF shall be deemed to continue to be an HUF for the purpose of the IT Act. One of the coparceners has released his right in respect of the 1/3rd share that was allotted to him in the partition. The question is whether that transfer by the release deed dt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fers his share, on the one hand for the purpose of the IT Act, such a transfer will not be recognised if the partition is not accepted u/s 171 and the income from that property will have to be added to the income of the HUF which is deemed to continue to exist, whereas for the purpose of the GT Act, the transfer will have to be accepted on the ground that the coparcener had transferred his separate interest without consideration. There is, thus a clear conflict between the two situations which may not occur in respect of the other related enactment, such as WT Act where there is a provision for making an order similar to s.171 of the IT Act u/s 21 of the WT Act. It seems to us that the revenue cannot take an inconsistent stand between the t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
