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TMI Blog2012 (12) TMI 165X X X X Extracts X X X X X X X X Extracts X X X X ..... no material to show that the balance extent of 16.25 acres, were, infact, joint family property and not an individual property. In respect of division of family property and not of joint property. It may be noted that the statement that the expression that parties henceforth would have only blood relationship and nothing beyond are found normally only in partition of HUF joint family and not in respect of division of property held jointly. Except to the extent of 4.63 acres of land found as HUF property, the assessment as regards other extent of 16.25 acres in the individual hands is confirmed. In favour of assessee - Tax Case (Appeal) Nos.383 and 384 of 2006 - - - Dated:- 24-9-2012 - MRS. CHITRA VENKATARAMAN AND MR. K. RAVICHANDRABAABU JJ. For Appellant: Mr. Quadir Hoseyn For Respondent: Mr. N.V. Balaji, Standing Counsel ------- JUDGMENT CHITRA VENKATARAMAN, JJ. The above Tax Case (Appeal) is filed at the instance of the assessee against the order of the Income Tax Appellate Tribunal for block assessment period 1984-85 and 1985-86. The above Tax Case (Appeal) was admitted on the following substantial question of law:- "Whether on the facts and in the ci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded from the individual assessment for the assessment years 1984-85 to 1986-87 and the assessment of the income made in the status of HUF in a protective manner should be treated as a substantive assessment. In so confirming the order of protective assessment on HUF, the first Appellate Authority pointed out that the assessee's agricultural income from 20.88 acres had been accepted upto Rs.1 lakh during the assessment year 1983-84. Taking note of the adangal extract, the Commissioner of Income Tax (Appeals) held that there were no material on the part of the Revenue to contradict the genuineness of the claim. Consequently, the question of adding any income under the head of income from other sources did not arise. Thus, while allowing the assessment of the assessee in the status of HUF, the Commissioner of Income Tax (Appeals) deleted the assessment to that extent at the hands of the individual. Aggrieved by this, the Revenue went on appeal before the Income Tax Appellate Tribunal. The Tribunal in paragraph 8.1 of the order pointed out that in the course of hearing of the appeals, by order sheet entry dated 7.2.2002, the Tribunal directed the assessee to produce materials regardi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l ought not to have held that the property was an individual property. 6. Learned standing counsel appearing for the Revenue supported the order of the Tribunal and submitted that even in the absence of appeal filed on confirming the protective assessment as a substantive assessment, yet, in considering the question as to whether particular property is HUF or individual property, the Tribunal was duty bound to go into the materials to give a fending as to whether the particular property has the character of individual property, joint property or HUF property. In so arriving at the finding, the Tribunal is entitled to take note of the materials and that the jurisdiction need not be curtained by the treatment given by the Commissioner of Income Tax (Appeals) on the protective assessment made on HUF as substantive assessment. The issue before the Commissioner of Income Tax (Appeals) was as regards the individual assessment and the HUF assessment was never an issue before the Commissioner of Income Tax (Appeals). Thus, when the appeals were with reference to the individual assessment, rightly the Tribunal held that the passing of the order of the Commissioner of Income Tax (Appeals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e document further reads that the assessee's brother Ramasamy Gounder was allotted property situated at S.No. 95/4 to an extent of 7.29 acres along with well with motor pump set etc. Out of S.No.95/A and S.NO. 87, 50 cents in each of the survey number was allotted to the father of the assessee. 10. As far as the nature of holding, which was the subject matter of division is concerned, we have no hesitation in coming to the conclusion that this was division of family property and not of joint property. It may be noted that the statement that the expression that parties henceforth would have only blood relationship and nothing beyond are found normally only in partition of HUF joint family and not in respect of division of property held jointly. For proper understanding the averments in the partition deed written in vernacular language, the same need to be extracted, which reads as follows :- VERNACULAR (TAMIL) PORTION DELETED 11. Reading the above recital, we have no hesitation in holding that the property situated in S.No.87 to an extent of 4.63 acres was originally joint family property. On partition on 24.2.1981, the same was allotted to the assessee herein. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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