9911796707
TMI Blog1990 (7) TMI 190X X X X Extracts X X X X X X X X Extracts X X X X ..... of individual. This return was prepared on the following basis. On the death of Manilal Manekji, the then Karta, 1/3rd of the family property devolved equally on the wife of the deceased and the minor son, by operation of the Hindu Succession Act. As for the remaining 2/3rd of the family property, the assessee's case was that the property was shared equally between the mother and son. 4. The WTO took the line that on the death of Manilal Manekji, the HUF consisting of Nirmalaben and the minor son continued to exist as respects the 2/3rd of the family property, and that, consequently, the said portion was to be brought to tax in the hands of the HUF. In this regard the WTO relied on the circumstance that the assessee had not filed an appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld by Smt. Nirmala and Shri Atul M. Shah on partition should be assessed in their individual hands on substantive basis. In the instant case, the WTO is directed to assess the wealth in the hands of the appellant on substantive basis". 7. Shri V.G. Nair, the learned Departmental Representative, strongly contended that the AAC was not justified in passing the impugned order. He argued that as respects 2/3rd of the family property, the HUF continued to exist, and no application for recording the factum of the partition was made as contemplated under s. 20 of the WT Act. For a fact, contended Shri Nair, there being one coparcener (namely, minor), partition is not possible in this case. In the circumstances, therefore, the WTO was justified i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is to law down that when a male Hindu dies on or after the stipulated date, leaving behind him a female relative specified in class I of the Schedule, or a male relative specified in that class claiming through such female relative, the interest of the deceased in the coparcenary property shall devolve by testamentary or intestate succession under the said Act and not by survivorship. The carving out of the share of the deceased will not affect the continuance of the joint family or bring about its disruption so far as the surviving members are concerned. They will continue to constitute a joint Hindu family with the senior most member functioning as its Karta. If any authority for this proposition is needed, it is to be found in the follo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one else. 14. In the case before us, the WTO after coming to the conclusion that the 2/3rd portion of the family property must be brought to tax in the hands of the HUF consisting of the mother and the son, proceed (a) to a state that he was initiating action separately in the case of the HUF and (b) to make a protective assessment on the basis of the return filed on behalf of the minor in the status of individual. We consider that the WTO could not be faulted on the line taken by him. The AAC clearly misdirected himself when he proceeded to give a finding that the 2.3rd portion of the property of the larger HUF got divided between the mother and the son. A couple of points may here be made. First there is nothing to indicate what type o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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