9911796707
TMI Blog1995 (11) TMI 48X X X X Extracts X X X X X X X X Extracts X X X X ..... in law in holding that the assessee was liable to pay capital gains tax only on 1/9th of the compensation because of partial partition of the Hindu undivided family of Natverlal M. Dudhia ? 2. Whether the Tribunal was correct on the facts and circumstances of the case in deciding the question of taxing the capital gains as it did without considering the contention of the Revenue that blending of the property by the assessee through declaration was not valid ? 3. Whether, on the facts and in the circumstances of the case, a female member can throw or blend her personal property into the common stock of the Hindu undivided family ?" The facts necessary for the present purposes as found by the Tribunal, may be stated briefly. The assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 80T. The claim of the assessee was rejected by the Assessing Officer by holding that a female's right in respect of blending properties is not at par with a coparcener's right. According to the Assessing Officer, a female member cannot throw her property into the common stock by mere declaration as a coparcener could and, therefore, in law, notwithstanding her declaration dated August 14, 1970, and a second partition dated August 18, 1970, she continued to remain the absolute owner of the land in question and the capital gains having arisen as a result of the said acquisition she alone is liable to capital gains arising on account of such acquisition in its entirety. He made an addition of Rs. 1,24,949 on account of long-term capital ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ordance with law. Whether the assessee's own action in throwing her property into the common hotchpotch had any legal effect or not to divest her of that property in law and vest it in the Hindu undivided family was a question which the Income-tax Officer was very much competent to go into and was not estopped from going into and applying the correct law as it ought to be. A capital gain arises on the transfer of property. Transfer takes place between the owner of the property and the acquirer of the property. In the case of compulsory acquisition the volition of the owner of the property is not required. None the less what the acquisition authority acquires is the right of the owner and it disburses the compensation in accordance with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... early erred in not deciding the real issue which arose for determining the basic question as to the ownership of the property as on the date of the vesting of the property in the State. It is only on determining to what extent and in whom the property in question vested on the date of the transfer, that the question of computation of capital gains in the hands of the assessee could be decided. It could not have been decided merely on the basis of the assessee's own admission, by invoking the principle of estoppel which, in our opinion, has no applicability to the facts of the present case. Therefore, in our opinion, the Tribunal was in error in deciding the question of taxing the capital gains as it did, without considering the contention ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
