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TMI Blog2011 (9) TMI 802X X X X Extracts X X X X X X X X Extracts X X X X ..... for the Respondent JUDGMENT N. Kumar, J 1. Sri M.V. Sheshachala, learned Counsel takes notice for respondents in Cross Appeals. 2. As these appeals and cross appeals arises out of the very same order passed by the Tribunal and the assessees are all members of the erstwhile joint family and therefore they are all taken up for consideration together and disposed of by this common order. 3. One Sri Anjana Murthy was the karta of Hindu Joint Family. He was the sole surviving coparcener. The family owned agricultural lands. They were also rearing cattle and carrying on milk vending business. After his death, his sons continued the coparcenary. Out of his wedlock with Komala, his first wife, he had four daughters, namely ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued on 02.02.2006 requesting the assessee to file the return of income for the assessment year 2004-05 within 30 days from the date of service of notice. Notice under Section 142(1) was issued on 18.04.2007 calling upon them to produce cash books, ledger books as on 01.04.2000 to 31.03.2001. The notice was served on 18.04.2007. There was no compliance. Again a notice under Section 142 was issued on 01.05.2007 posting the case for hearing on 08.05.2007 and to produce the cash book, ledger, bank pass book for the period 01.04.2003 to 31.03.2004. There was no compliance. However, the assessee filed return of income on 21.05.2007 declaring income of Rs.99,237.00 being 1/3rd share of rent in respect of the co-owner of about 33 dwelling units ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of those assessees to whose share the properties has fallen in the partition and it cannot be assessed as a Hindu Undivided Family. Therefore the Assessing Authority as well as the appellate authority committed serious error in assessing the said properties contrary to the contents of the return filed by those persons. 7. The Tribunal relying on the judgment rendered by it in Ramaiah Reddy's case, declined to go into the validity of the satisfaction, authorisation and search under Section 132 of the Act. On merits, it held that the Assessing Authority has to re-look into the matter and find out what are the properties which had fell to the share of these members in pursuance of the oral partition and then find out when those propertie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perties were joint family properties, at a particular point of time. However, the joint family itself was not assessed to tax and as rightly held by the authorities. Section 171 is not attracted. The law recognises oral partition. Therefore, if, in a oral partition dated 10.02.1996 and 01.12.1999, if the properties have fallen to the share of members of the family, from the date of such partition, it becomes their absolute property and if they have sold that property thereafter, it is they who had to pay capital gains. The said properties cannot be treated as Hindu Undivided Family. It is on record that the said partition is also the subject-matter of civil litigation, as all the authorities have not accepted the same. Under these circumsta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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