9911796707
TMI Blog1981 (4) TMI 45X X X X Extracts X X X X X X X X Extracts X X X X ..... the I.T. Act, 1961, for the assessment year 1965-66, treated the said properties as that of the assessee. The ITO, reading the terms of the will, concluded that the property bequeathed by late Jaskaran Bhutoria was intended to be the separate property of the sons and not the ancestral properties in the hands of the Sons as regards their male issues. He concluded that it was only an integral part of the scheme to partition his separate property amongst the heirs and, therefore, he assessed the income in the hands of the HUF. Relying on the I.T. assessment order for the assessment year 1965-66, the WTO reopened the assessment for the assessment years 1960-61 to 1962-63, under reference, in order to include the value of the properties in the net wealth of the assessee. In the assessment orders for the assessment years 1960-61 to 1962-63 made under s. 16(3) read with s. 23 of the Act, the WTO included the value of the said property in the net wealth of the assessee. Similarly, for the assessment years 1963-64 to 1968-69, the WTO, in his assessment order made under s. 16(3) of the Act included the value of the said property in the net wealth of the assessee. The WTO also included the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ill itself and there was no reason why the father should exclude his grandchildren from the will. It is also alternatively argued that the properties, even if they do not have the characteristic of ancestral property in the hands of the two brothers, they could thus acquire the characteristic of an HUF property. Before entering into a discussion as to the law on the point, it is better to give the summary of the will, a copy of the English translation of which forms a part of the paper book (pp. 10 to 10(g)). The deceased testator stated initially that he and his brothers had inherited all the properties and money-lending business from their father. He and his brother separated and the properties had been partitioned. He had also partitioned the property, that is, amongst his two sons, in 1357 B.S. and they were maintaining their families from the income of the properties got by them on such partition. After such separation and partition, no other issues had been born to him. Besides his two sons, he had five daughters. He mentioned that the Hindu Succession Act had undergone various changes and his earnest desire was that, after his death, there being many cosharers, the property ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /s. Ram Rakshpal Ashok Kumar, the assessee. Durga Prasad also left behind a widow, jai Devi, and daughter, Vidyawati. Upon his death, Vidyawati took her one-third share of the property left by Durga Prasad, but his widow, jai Devi, and his son, Ram Rakshpal, entered into a partnership for 2/3rds of the assets of the business known as Murli Dhar Mathura Prasad, which was, as already indicated, the separate business of Durga Prasad. A partnership was entered into between jai Devi and Ram Rakshpal and its terms were incorporated in a deed which was duly registered on April 23, 1958. In the assessment year 1959-60, immediately following the death of Durga Prasad, a question arose whether the income from the one-third share, which had come to Ram Rakshpal from Durga Prasad, should be assessed as part of the income of the HUF of Ram Rakshpal Ashok Kumar, the assessee, or as the separate property of Ram Rakshpal. The ITO assessed it as the income of the HUF applying the well-recognised principle of Hindu law that the property left by the grandfather in the hands of the father was ancestral property in which the grandson had a right by birth. On appeal, the AAC maintained the decision of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discussion of the relevant sections of the Hind it Succession Act, and their applicability to the general Hindu laws governed by Mitakshara branch at pp. 421-422 of the report which we may quote here: " It will be noticed that both section 6 and section 30 deal with the undivided share of a Hindu in a Mitakshara coparcenary property. They do not deal with his individual self-acquired property. Therefore, it is obvious that what has been provided for in section 6 and section 30 of Hindu Succession Act, can in no way affect the character of the property in the hands of the son when the son gets the property by inheritance from his own father. Neither section 6 nor section 30 deals with such a situation. Under section 8 of the Act, it has been provided that the property of a male Hindu dying intestate shall devolve according to Chapter II upon the heirs, being the relatives specified in Class I of the Schedule. If there is no heir of Class I, then upon the heirs being the relatives specified in Class 11 of the Schedule; and if there is no heir of any of the two classes, then upon the agnates of the deceased and if there is no agnate, then upon the cognates of the deceased. The result ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l the Tribunal held that the property did not form part of the joint family properties and hence the income therefrom could not be assessed in the hands of the family. On a reference, it was held by the High Court that under the Hindu law, the property of a male Hindu devolved on his death on his sons and grandsons, as the grandsons also have an interest in the property. However, by reason of s. 8 of the Hindu Succession Act, 1956, the son's son gets excluded and the son alone inherits the property to the exclusion of his son. No interest would accrue to the grandson of P in the property left by him on his death. As the effect of s. 8 is directly derogatory of the law established according to Hindu law, the statutory provision must prevail in view of the unequivocal intention in the statute itself, expressed in s. 4(1), which says that to the extent to which provisions have been made in the, Act, those provisions shall override the established provisions in the texts of the Hindu law. Accordingly, in the instant case, K alone took the properties obtained by his father, P, in the partition between them and irrespective of the question as to whether it was ancestral property in the h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e no scope for considerations of a wide and general nature about the objects attempted to be achieved by a piece of legislation when interpreting the clear words of the enactment. As has been repeatedly laid down by courts, both Indian and English, the intent and object have to be gathered primarily from the plain words of the statute. It is clear that the observations of Mulla's Commentary on Hindu Law, quoted above, relate only to what was attempted to be achieved by section 6 of the Act. Section 6 of the Act is the only provision of the Act which deals with the devolution of interest in a Mitakshara coparcenary property on the death of a male Hindu after the commencement of the Act. The other sections apply equally to all Hindus as defined in the Act whether governed by the Mitakshara or Dayabhaga law. They also apply to Jains and Sikhs who are, as already observed, Hindus according to the definition of the term 'Hindu' found in the Act. It is not possible to conceive of separate intents of a general provision of the Act with regard to separate groups of persons governed by separate schools of Hindu law. The only way of indicating any such separate intention is to make a special ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t " within the meaning of s. 2(e) of the W.T. Act. Not being an asset, the mechanism of valuation provided in a. 7 of the W.T. Act will not apply. As no time-limit has been fixed for the payment of the compensation and it may happen, that after making the deductions referred to in the Act, no compensation at all may be found to be payable to the assessee, if wealth-tax is imposed on the so-called right to compensation, then the assessee will keep on paying the tax year after year and may ultimately find that he cannot have any compensation at all when the compensation and calculations are made under as. 16 and 17 of the West Bengal Estates Acquisition Act. These considerations are repugnant to the basic concept of a taxing law. This decision was mentioned and referred to before the Supreme Court in the case of Pandit Lakshmi Kant Jha v. CWT [1973] 90 ITR 97. At p. 109 of the report, the Supreme Court observed as follows : " Mr. Kolah has invited our attention to a decision of the Calcutta High Court in the case of Commissioner of Wealth-tax v. U. C. Mahatab [1970] 78 ITR 214, wherein the court held that till the final publication of the compensation assessment roll under the West ..... X X X X Extracts X X X X X X X X Extracts X X X X
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