9911796707
TMI Blog1994 (2) TMI 40X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee was Hindu undivided family ? (ii) Whether, on the facts and in the circumstances of the case and in view of the fact that the wife of the assessee was, in any case, the member of the Hindu undivided family, the Tribunal was correct in excluding the income from capital gains from the assessment of the assessee? " The respondent herein, the assessee, in the returns submitted during the period 1957-58 to 1971-72 declared his status to be individual. He did not file returns for the period 1972-73 to 1974-75. When notices were sent to him under section 139(2) and section 148 of the Act of 1961, he submitted returns as an individual but specifically pleaded that his status is a Hindu undivided family and not an individual. The Asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... states that the two business enterprises should be continued as partnership firm, with the settlor, his wife and major sons as partners and the minor sons being admitted to partnership. Following the decision of the Bombay High Court in Kisansing Mohansing Balwar v. Vishnu Balkrishna Jogalekar, AIR 1951 Bom 4, the Tribunal held that the settlement of the business enterprises was in favour of the Hindu undivided family. The Bombay High Court had taken the view that when the father makes a division of his self-acquired property between his sons, the transaction is really in three parts, namely, creation of separate status between sons, throwing into the hotchpot his self-acquired property and dividing the same amongst the sons and, therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... low as a necessary consequence that the father is quite competent to provide expressly, when he makes a gift, either that the donee would take it exclusively for himself or that the gift would be for the benefit of his branch of the family. If there are express provisions to that effect either in the deed of gift or a will, no difficulty is likely to arise and the interest which the son would take in such property would depend upon the terms of the grant. If, however, there are no clear words describing the kind of interest which the donee is to take, the question would be one of construction and the court would have to collect the intention of the donor from the language of the document taken along with the surrounding circumstances in acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that they take in equal shares, the specification of the shares and the requirement that the enterprises should be continued as partnerships with specified shares clearly establish that the settlors are to take the same as co-sharers and not as members constituting a Hindu undivided family. These circumstances also establish that there was no intention to throw the assets into any common hotchpot. The view taken by the Tribunal is wholly erroneous. Question No. 1 has to be answered in the negative, i.e., in favour of the Revenue and against the assessee. The subject-matter of question No. 2 has not been considered by the Tribunal. The question relates to the capital gains derived on sale of items of property acquired by or in the name o ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
