9911796707
TMI Blog1995 (9) TMI 12X X X X Extracts X X X X X X X X Extracts X X X X ..... s been mentioned in brief in the Tribunal's order as well as in the orders of the Appellate Assistant Commissioner, the facts in the background of which the controversy has arisen have not been stated in the order of the Tribunal for the assessment years 1972-73 to 1977-78. However, the order of the Tribunal relying upon which the order in question has been made has also been made part of the statement of the case from which the following facts emerge. The assessee, Kasturbhai Mayabhai, is assessed to income-tax. From the assessment year 1939-40 up to the assessment year 1965-66, he was returning income from all sources in the individual status and was so assessed. Initially, returns for 1966-67 to 1970-71 were also filed in his individual ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the income derived from the properties inherited by the assessee from Manibhai (i.e., 9/16ths share of Manibhai in Nathubhai's property) in the assessee's total income in his individual status. Aggrieved by that part of the order by which 9/16ths share relating to the properties inherited from Manibhai were held to be a Hindu undivided family, the assessee carried the matter in appeal before the Appellate Assistant Commissioner. The Appellate Assistant Commissioner accepted the contention of the assessee and held that the income derived by the assessee from the properties which he inherited from his adoptive father, Mayabhai, was income belonging to the Hindu undivided family ; while the income derived by him from the properties which he i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6ths of the entire income. The Appellate Assistant Commissioner confirmed those assessments following the aforesaid decision of the Tribunal. The Tribunal in its order stated that both the authorities have relied upon the decision dated December 22, 1975, of the Tribunal for the assessment years 1967-68 to 1970-71 in Income-tax Appeals Nos. 1353 to 1355 (assessment year 1972-73) which was against the assessee and saw no infirmity in the decision of the Tribunal. On these facts, the following questions have been referred for the decision of this court by the Income-tax Appellate Tribunal, Ahmedabad Bench-B, in respect of all the assessment years : " Whether, on the facts of the case, the Appellate Tribunal was right in law in holding tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore us, to give any direction or finding in regard to the same. " However, while giving final directions, the Tribunal observed that it is obvious that none of the properties acquired by the assessee could be said to be joint family property. In the case of properties acquired from his natural father by will, and from his natural mother by deed of release, they are certainly not ancestral property because he has gone out of the family, and has been adopted by the widow of Mayabhai, the adoptive father. So far as the property inherited by him from the adoptive father is concerned hereto, though it could be regarded as ancestral property, it cannot become the property of the Hindu undivided family consisting of himself, his wife and widowe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... belong to the assessee's Hindu undivided family and consequently, the income derived therefrom was assessable in the hands of the assessee's Hindu undivided family. The Revenue was not aggrieved by this part of the decision of the Appellate Assistant Commissioner. As the result of the Appellate Assistant Commissioner's order, the income derived from the properties inherited from Mayabhai was not included in the assessee's total income in his individual status. It was only because the income derived from the properties inherited from Manibhai was held to be income of the assessee that the Revenue had gone in appeal before the Tribunal. It was while deciding the question whether or not the income derived from the properties inherited by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee, if so advised, to apply for rectification of the assessment order, if any income which is not includible is included by the Income-tax Officer while giving effect to the Tribunal's order. " Exactly this has happened in the present case. The Income-tax Officer while giving effect to the Tribunal's order has included the income derived from the assets inherited by the assessee from Mayabhai as income of the individual solely on the basis that the Tribunal's order related to the assessment years 1967-68 to 1970-71. As the decision of the Tribunal is also solely on the basis of its earlier order relating to the assessment years 1967-68 to 1970-71 which according to the decision of this court, is confined only to the income derived from ..... X X X X Extracts X X X X X X X X Extracts X X X X
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