9911796707
TMI Blog1979 (4) TMI 7X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the assessment of the entire income from the said property in the hands of the assessee for the assessment years 1968-69 and 1969-70 ? " The assessee, who is a female member of an HUF, is the owner of house situated at: 109/48, Chanakya Puri. She purported to throw one half of the property into the hotchpot of the HUF by a declaration made on 30th March, 1967. On that basis she filed returns of her income showing 50% of the income from the said property as her income, while the other 50% of the income from the said property as being the income of the HUF. The ITO, however, held that the assessee, being a female member of a HUF, was not competent to blend any part of her self-acquired property into the hotchpot of the HUF. The AAC and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e has no right of survivorship and is entitled only to be maintained out of the joint family property. Her right to demand a share in the joint family property is contingent, inter alia, on a partition taking place between her husband and his sons (See Mulla's Hindu Law, 14th edition, page 403, para. 315). Under section 3(2) and (3) of the Hindu Women's Rights to Property Act, 1937, her right to demand a partition in the joint family property of the Mitakshara joint family accrued on the death of her husband. Thus, the expression 'blending' is inapposite in the case of Hindu female who puts her separate property, be it her absolute property or limited estate, in the joint family stock." Since the assessee is a female member of the HUF she ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , brought within the net of chargeability income not actually accrued but which is supposed notionally to have accrued. In Bombay Trust Corporation's case, it is said that when a person is deemed to be something the only meaning possible is that whereas he is not in reality that something the law treats him as if he were such. We agree that the Legislature can by fiction confer a certain legal character on a transaction even though the real nature of that transaction is different. We think that the learned counsel need not have gone beyond the G.T. Act, 1958, for an apt illustration of such a deeming provision. In s. 4 of the said Act, transactions which are for consideration and would not, therefore, be gifts under Chap. VII of the Transfe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Supreme Court then deem it to be a gift ? Why did it not say that in fact there was an actual gift ? The reason is clear from the facts of the case. The declaration of September 1, 1961, was not one of gift. On the other hand, it was one of blending. The facts not being in dispute the Supreme Court could take the view along with the Tribunal that the legal nature of the transaction was one of gift, though the assessee purported to make it one of blending. The meaning of the word " deem " used by the Supreme Court in that context was that though the assessee intended the transaction to be of blending, in law it amounted only to a gift. This legal finding could be given because the requirements of a valid gift were satisfied. These requir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt to a gift because it was not a bilateral transaction. Had it not been blending and had it been a gift then the necessity of registration also would have arisen. In CGT v. Munshi Lal [1972] 85 ITR 129 (Delhi), the headnote says that it would make no difference in principle so far as the applicability of the G.T. Act, 1958, is concerned whether the separate property is impressed with the character of joint family property by a male member of the family or by a female member of the family and the act of either of them amounts to blending and, therefore, did not amount to a gift. But a reading of the judgment show that the distinction between the competency of a male coparcener and the incompetency of a female coparcener in respect of blen ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
