9911796707
TMI Blog1996 (4) TMI 117X X X X Extracts X X X X X X X X Extracts X X X X ..... the earnings from the family properties provided the nucleus for acquisition of the other properties which were then included in the family properties and which were the subject-matter of the partition made between the assessee and his children. It was clearly held that this partition made in the year 1919 A.D. between the assessee and his brothers was of coparcenary property and the entire corpus covered by the partition deed on February 11, 1965, is the coparcenary property of the assessee's family. This finding of fact was not challenged before the Tribunal and the Tribunal's judgment of affirmance must be construed as based on this finding as well. Even in the High Court, this finding remained unassailed and the High Court without adver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight of a son in it by birth ? (2) Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal is right in upholding the finding of the Appellate Assistant Commissioner that the transaction recorded in the document dated February 11, 1965, is only a partition and not a gift to the extent of the shares allotted to the two sons of the assessee ? " The assessee is a Cutchi Memon settled in the erstwhile princely State of Travancore which now forms part of the State of Kerala. The family of the assessee like that of the other Cutchi Memons of Travancore had migrated from Bombay, to which place they came from Sindh after their conversion from Hinduism. The assessee's family is one of the total of 332 familie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sequently acquired by Sri Mohammed Issac out of his earnings from the family lands and as these also have been clearly included among the family properties in the partition document it follows that the entire corpus covered by the deed is coparcenary property. It therefore follows that : (a) ... (b) ... It will thus be clear that the transaction recorded in the disputed document is, in fact, a partition of joint family property and not a gift by Mohammed Issac to his children. " The Gift-tax Officer preferred an appeal to the Tribunal which was dismissed. The Tribunal upheld the view taken by the Appellate Assistant Commissioner that the rule of survivorship applied to the assessee's family. The Tribunal placed reliance on the decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee and his brothers was of coparcenary property and the entire corpus covered by the partition deed on February 11, 1965, is the coparcenary property of the assessee's family. This finding of fact was not challenged before the Tribunal and the Tribunal's judgment of affirmance must be construed as based on this finding as well. Even in the High Court, this finding remained unassailed and the High Court without adverting to this finding of fact relating to the personal law applicable to the assessee's family, has reversed the decision of the Tribunal. It may also be mentioned that the decision against the assessee has been rendered on the basis that the assessee has failed to discharge the burden of proof---the applicability of the r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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