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TMI Blog2022 (5) TMI 723X X X X Extracts X X X X X X X X Extracts X X X X ..... e s mother under the will of K.K.Vijayakumar cannot be the basis to hold that the assessee did not have any rights whatsoever. The assessee had a right to question the validity of the will and had in fact filed the suit for partition and separate possession of his share of the suit properties. He gave up his rights to contest the will and in return received Rs.1.60 Crores and a shop at Avenue Road. Therefore the sum in question cannot be said to have been received without consideration. The sum in question is not in the nature of revenue receipt and is capital receipt not chargeable to tax. The sum so received cannot also be brought to tax as capital gain u/s.45 of the Act. In the case of Smt.T.Gayatri [ 2013 (8) TMI 934 - ITAT BANGAL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act that there was a suit for partition in which the assessee became entitled to 1/10th share over the property. The Tribunal also took note of the fact that there was a compromise recorded between the parties before the appellate court, whereby assessee agreed to receive Rs.87.50 lakhs towards her 1/10th share over the property in lieu of 1/10th share of property physically delivered after division by metes and bounds. In these circumstances that the Tribunal came to the conclusion that the sum received by assessee was nothing but realization of assessee's rights as legal heir. The Tribunal also took note of the subsequent release deed executed by assessee in favour of developers, who purchased the property from other co-sharers, as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... excluded from the total income under this Act shall be chargeable to income-tax under the head Income from other sources , if it is not chargeable to income-tax under any of the heads specified in section 14, items A to E. (2) In particular, and without prejudice to the generality of the provisions of sub-section (1), the following incomes, shall be chargeable to income-tax under the head Income from other sources , namely :- (i) to (vi)...... ( vii ) where an individual or a Hindu undivided family receives, in any previous year, from any person or persons on or after the 1st day of October, 2009 but before the 1st day of April, 2017,- (a) any sum of money, without consideration, the aggregate value of which exceeds fifty th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... K. V. Shashirekha absolutely. According to the assessee, the bequest as above was only for the family convenience and also, she happened to be the eldest member of the family. 6. After the demise of K.K.Vijayakumar, the assessee filed a suit for partition and separate possession of his share of the properties belonging to K.K.Vijayakumar in O.S.No.3478/2011 on the file of the City Civil Court, Bangalore. The parties to the suit viz., the assessee his brother K.V.Srinath and his mother K.V.Shashirekha signed an agreement u/s.89 of the Code of Civil Procedure, 1908 read with Rules 24 25 of the Karnataka Civil Procedure (Mediation) Rules, 2005 dated 12.01.2012 whereby it was agreed that the assessee would be paid a sum of Rs.1,60,00,000/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecified in Sec.56(2)(vii)(a) of the Act. 9. None appeared for the assessee. We have heard the submission of the learned DR who relied on the order of the AO. We have already extracted the provisions of Sec.56(2)(vii)(a) of the Act. Those provisions will apply only when any sum of money is received, without consideration , the aggregate value of which exceeds fifty thousand rupees. Admittedly, the assessee received the sum of Rs.1.60 Crores for giving up his rights over some of the items of the suit properties. The fact that all the items of suit properties were bequeathed to the assessee s mother under the will of K.K.Vijayakumar cannot be the basis to hold that the assessee did not have any rights whatsoever. The assessee had a right t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wherein amount of Rs. 87.50 lakhs was not offered to tax under the head 'capital gain'. The assessee took a stand that the sum in question was a receipt consequent to a family arrangement and therefore, there was no transfer of any capital asset so as to attract provisions of section 45. The Tribunal dealt with the aforesaid issue and came to the conclusion that sum received by assessee is traceable to the realisation of rights as legal heir of intestate succession and not to any sale, relinquishment or extinguishment of right to property. The Tribunal took note of the fact that there was a suit for partition in which the assessee became entitled to 1/10th share over the property. The Tribunal also took note of the fact that there w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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