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TMI Blog1981 (8) TMI 169X X X X Extracts X X X X X X X X Extracts X X X X ..... n by metes and bounds. The assessment proceedings started with filing of the return under s. 14(1) of the WT Act for asst. yr. 1970-71 by Shri G.M. Raut disclosing net wealth of Rs. 40,85,385. This was followed by another return for asst. yr. 1971-72. In the course of assessment proceedings brothers Shri L.M. Raut and Shri S.M. Raut stated that HUF had ceased to exist w.e.f. 2nd Oct., 1960 because of oral partition which was effected on that date. Later on memorandum was drafted on 6th Oct., 1960 and properties were divided among the three brothers. According to Shri G.M. Raut there was no such partition on 2nd Oct., 1960 as alleged by Shri S.M. Raut. Shri G.M. Raut died on 11th Sept., 1973 and 12th Sept., 1973 Shri L.M. Raut filed revised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. The next issue was whether the partition was acted upon or not. He considered land reference and he held that the oral partition on 2nd Oct, 1960 was not acted upon between the parties by partition of the properties by metes and bounds. The WTO considered the final decree which was passed on 2nd Sept., 1974 which confirmed the memorandum of partition dt. 6th Oct, 1960 which according to the parties took effect from 2nd Oct, 1960. The TWO observed that no entries were made in the records in 1960 or thereafter indicating the partition and the change of ownership According to him all the remained in joint ownership of three brothers and, therefore, there was no divisions of properties by metes and bounds. In 1960 or thereafter he held that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Shri G.M Raut wherein he has filed a suit for partition for actual division. Therefore according to him there was no partition in 1960. Even after the death of Shri G.M. Raut stand of his heirs is that there is no partition in the family. According to the Deptl. Rep. assessee s case is on the memorandum and its contents and for that purpose he drew our attention to para 5 of the WTO s order under s. 20. According to the Deptl. Rep. there is no evidence regarding original documents of partition. The WTO s conclusion that partition was not acted, is correct, because in land acquisition proceedings, there share was equally take by there brothers S/Shri G.M. Raut, L.M. Raut and S.M. Raut. In another acquisition proceedings these three brother ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was argued that this case does not help the assessee. According to the l. Deptl. Rep. all the material and facts go to show that in 1960 there was no actual physical division of properties and therefore assessee s claim cannot be entertained. It will have to be proved by the assessee that there was a partition. It was also stated that there is no mention of Mrs. Radhabai because she had died and she was party to a partition in 1960 and her share should go to her heirs. Fiction of law cannot be fiction of facts. 9. On behalf of the assessee it was argued that there was oral partition on 2nd Oct, 1960 and that it was reduced to writing on 6th Oct, 1960 and that it was given to Shri S.M. Raut and that this is clearly proved beyond doubt by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that he was not joint with the others. Para 9 of the CWT(A) s order is helpful to the assessee where in he has mentioned succession of Shri S.M. Raut is clearly shown in the sale deeds executed in June 1961 where he has been shown as a confirming party, the transferors being Smt. Radhabai Shri G.M. Raut and Shri L.M. Raut. It is further stated in para 9 that Shri S.M. Raut had asked from the brothers his separate share of the joint family property (this is recited in the sale deed). He also affirm that he received his 1/4th share out of joint family and therefore he has no right or interest in the property being sold. The material fact weighed with the CWT (A) and rightly. Even in the confirmatory decree it was given effect to the partiti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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