9911796707
TMI Blog2012 (12) TMI 165X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tribunal erred in not dismissing the appeal by the Department in limine in the light of the Revenue not filing an appeal to the Tribunal from the HUF assessment rendered substantive by the order of the first appellate authority?" 2. The assessment herein relates 1984-85 and 1985-86. The assessee is an individual. He filed returns in his capacity as Kartha of HUF. While passing the assessment order for 1984-85, the Assessing Officer referred to the order of the assessment relating to 1982-83, thereby rejected the claim of the assessee that he was owning an extent of 20.88 acres of agricultural lands at Alamarathupatti Village, Kolathur in the status of HUF. The Officer pointed out that in spite of the opportunity, the assessee had not su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elief. He viewed that inclusion of HUF income at the hands of the individual was not correct. Hence, the same had to be excluded 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. Consequ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax was relating to the assessee in his individual capacity and not HUF. Thus, the view of the Commissioner of Income Tax (Appeals) treating protective assessment as substantive assessment not being a subject matter of appeal was illegal it being beyond the scope of jurisdiction. The Tribunal held that the assessee had not substantiated that the property in question belonged to the assessee as HUF property. In the result, the order of the Commissioner of Income Tax (Appeals) was reversed. 4. As regards income from lorry was concerned, considering the decision taken by the Tribunal in the other appeal, which we have narrated in the preceding paragraph, it allowed the Revenue's appeal. Aggrieved by this, the assessee is on appeal bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) confirming the protective assessment as substantive assessment was without jurisdiction and without any basis. Learned Standing counsel for the Revenue further pointed out that the encumbrance certificate at best showed whether there was any encumbrance or not. It cannot speak on the nature of holding as to w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be entitled to enjoy the property absolutely and except for the blood relationship, there was no connection to bind them together, that each one was entitled to the income that he might earn, for which other shall not have any claim. The documents also reasoned out as to why the assessee's father Pongaiappa Gounder was provided with a property for his life time. A reading of the 'B' schedule property revealed that the assessee herein was allotted to an extent of 4.63 acres comprised in S.NO. 87 in Alamarathupatti Village and that he was entitled to the well along with motor pump therein. The 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 wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allotted an extent of 4.63 acres alone, there are no material to show that the balance extent of 16.25 acres, were, infact, joint family property and not an individual property. Had it been so, the partition deed would have made a reference. Learned counsel does not dispute this fact. In the absence of any material to substantiate that the extent of 16.25 acres property was purchased out of the income from the HUF property, we have no hesitation in confirming the order of assessment, thereby affirming the Tribunal's order too that the said extent is assessable at the individual hands of the assessee only. 13. Even though learned counsel for the assessee made a plea for remand, we do not find any justifiable ground for granting the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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