9911796707
TMI Blog2012 (9) TMI 403X X X X Extracts X X X X X X X X Extracts X X X X ..... smissing the appeal filed by the revenue against the order dated 31/03/2004 passed by the Commissioner of Income Tax (Appeals) ('CIT(A)' for short) allowing the appeal preferred against the order passed by the Assessment Officer. 3. Briefly, the facts relevant for disposal of the present appeal are as under : Francisco Jose D'Souza, the husband of the respondent (assessee) was working in Bahrain. He returned to India in the year 1985. His earnings in the foreign country were brought to India and were invested in Fix Deposit Receipts (FDRs) in various banks. The husband of assessee expired on 4/02/1988 leaving behind one daughter and three sons. All the three sons are settled abroad. The daughter is married and is living in Goa. All the fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 1123 of Portuguese Family Civil Law in Goa, Daman and Diu, Section 5A of the Act and the judgments of this Court in CIT Vs. Purushottam Bhende; 106 ITR 932, 941 (Bom.), CIT Vs. Shri and Smt. Jose Filipe Alvares; 211 ITR 1027, CIT Vs. Datta Gaytonde; 241 ITR 241/242 (Bom.) and Goa Salaried Tax Payers Association Vs. Union of India; 249 ITR 195 (Bom.) 9. The ITAT further held that the law applicable to the assessee could not have been superseded by the mutual consent of the parties or negligence on behalf of the parties. The ITAT, therefore, held that 50 % share of the deceased husband would go to the legal successors which include three sons and one daughter; if the successors had not taken legal proceedings for transfer of their shares i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing to learned Counsel, the entire interest on the fix deposits ought to have been assessed in the hands of the assessee and not 50 % of the interest inasmuch as the entire interest amount was held in the name of the assessee and even TDS was not deducted by the bank. 12. Placing reliance upon Section 283 of the Act, Ms. Dessai submitted that the view taken by the CIT(A) as well as ITAT is patently unsustainable in law. She further submitted that there was no actual partition in respect of the assets and more particularly the amounts which were admittedly lying in the name of the assessee in the bank and as such, in the absence of actual partition, the Assessment Officer was entitled to assess the entire interest in the hands of the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15. In our view, the reliance placed by the revenue on the judgment in the case of Jose Filipe Alvares (supra) is totally misplaced. Even in the said case, in view of amendment to Income Tax Act by introduction of Section 5A with retrospective effect, the Division Bench of this Court declined to answer the question referred to it and remitted the matter to the Tribunal to decide afresh in the light of Section 5A of the Act. In our view, the ratio of the said judgment does not advance the case of the revenue. Similarly reliance placed on Section 283 of the Act is also misplaced inasmuch as it is not at all applicable in the present case. 16. We are of the considered view that the submission made on behalf of the revenue that the assessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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