9911796707
TMI Blog1991 (2) TMI 21X X X X Extracts X X X X X X X X Extracts X X X X ..... ime of the execution of the will, Nanjappa was physically incapacitated due to an accident. The applicant is his wife and he had no children at that time. The returns were being filed by the applicant as the legal guardian to her husband. For the assessment years 1971-72 to 1976-77, the returns were filed in the status of an individual both for income-tax as well as for wealthtax purposes. In the course of the assessment proceedings for the years 1975-76 and 1976-77, it was claimed that the properties assessable really belonged to the Hindu undivided family of Nanjappa consisting of himself, his wife and two sons, as there was a partition of the joint family dated November 4, 1974. The Income-tax Officer as well as the Wealthtax Officer have not accepted this claim and they also did not accept the validity of the partition of the joint family. Hence, the entire properties were assessed on Nanjappa as an individual. Appeals were preferred before the Appellate Assistant Commissioner. The impugned order was passed in wealth-tax appeals and the same reasoning was adopted in the income-tax appeals. It was urged before him that due to partition on November 4, 1974, the assessments fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Appellate Assistant Commissioner relates to 1971-72 to 1976-77. Hence, it was held that for 1972-73 to 1976-77, the orders became final. In this anomalous position, the Tribunal was not in a position to disturb the orders made below. On merits, the Tribunal held that the property bequeathed was not held by Nanjappa as the karta of the family as he had no son born at that time and the intention of the testator was that, due to Nanjappa's ill-health, the properties should not be sold and his three brothers were to manage the properties on behalf of Nanjappa. The applicant by making an application before the civil court, obtained a partition by consent. The Tribunal further held that, in addition to the above circumstances, the assessments from the year 1950-51 and onwards having been made in individual capacity of Nanjappa, the same cannot be held as belonging to the Hindu undivided family. It was also held that only one property bearing Municipal No. 309/312 situated at Avenue Road, which was allotted to the share of the first son was the ancestral property of the testator. There was no material that the testator had blended his ancestral properties with his self-acquired prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... court on April 16, 1965. Permission to partition the properties between Nanjappa and his major sons and the other members of his family was granted in the year 1974 and, and the approval of the court, a partition was effected on November 4, 1974. If we read the conditions imposed in the will executed by the father of the deceased, it was intended that the properties should be bequeathed to Nanjappa in his individual capacity and not to his branch of the family. Hence, the will cannot be construed as a partition deed and it was never intended to be so by the testator also. In regard to the character of a property when it is received not by inheritance but by way of gift, testamentary or inter vivos, the Supreme Court in C. N. Arunachala Mudaliar v. C. A. Muruganatha Mudaliar, AIR 1953 SC 495, which decision is relied on by the assessee, after examination of various views, held that there should be no presumption one way or the other and the question was primarily one of intention of the donor to be gathered from the terms of the deed of gift or the will. If, for instance, the deed of gift or the will recited that the son should enjoy the property allotted to him with absolute rig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the hands of the beneficiaries, the said property becomes Hindu undivided family property for himself and for his family members. The facts are that, by virtue of a settlement deed dated March 30, 1952, a Hindu father settled certain self-acquired properties on his sons. The sons were assessed as "individuals" both to wealth-tax and income-tax in respect of the properties settled on them as well as on the income therefrom till the assessment year 1963-64, in which year the sons claimed their status as that of Hindu undivided family in respect of these properties. Reliance was placed on the recitals in the settlement deed and also declarations produced before the assessing authority by the father and sons to the effect that the properties were to be enjoyed by the sons as joint family properties. This contention of the sons was rejected by the Income-tax Officer and also by the Commissioner before whom revisions were filed. When this question came up before this court, Venkataswami J., following the decision in C. N. Arunachala Mudaliar v. C. A Muruganatha Mudaliar, AIR 1953 SC 495, referred to above, held that, on a consideration of the recitals in the settlement deed and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... born to him before his death, the assessee and the other son were to share the properties jointly. In the will, it was mentioned that most of the properties were self-acquired. No son was in fact born to the testator before his death. The claim was rejected by the Income-tax Officer but upheld by the Appellate Assistant Commissioner and confirmed on appeal by the Tribunal. Since the power of alienation was not given to the assessee as a condition was imposed, the court held that the properties obtained by the assessee should be treated only as joint family properties and not as his individual properties. In the instant case, the property in question was never treated as that of a Hindu undivided family and in view of Nanjappa's mental condition, blending by him was impossible. Even during the subsequent years as well as previous years, the assessment was in the status of individual. In these circumstances, the assessee was rightly held to be assessable in individual status. Interestingly, a further fact is to be noted ; under the will, Nanjappa had only a limited interest which itself is indicated of it not being a coparcenary interest. In view of the discussions made above, we ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
