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TMI Blog1977 (12) TMI 37X X X X Extracts X X X X X X X X Extracts X X X X ..... It is not necessary for us to go into the details of the properties and the shares allocated to each as there is no dispute on any such fact or figures and the short and simple question which is purely one of law is as to whether the income arising from the properties falling to the share of the assessee as a result of these petitions, on four different dates, is to be assessed as his individual income or the income of the HUF made up of himself and the daughter. It was the case of the assessee that the disputed income which has been clubbed with his individual income in the assessment year under appeal should be excluded and assessed separately in the hands of the HUF consisting of himself and his daughter. The claim was rejected by the ITO but accepted by the AAC in Appeal resulting in the deletion of the income of Rs. 1,24,622. 3. The learned Departmental representative Shri C.V. Kothari submitted that the number of cases referred to by the AAC as contained in the opinion given by Shri J.C. Shah who is the Chief Justice of India are clearly distinguishable on facts and cannot be said to support the assessee's case. These decisions are:— (1) Gowli Buddana vs. CIT.(1) (2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee acquired the share on partition as sole male member and therefore the property cannot constitute joint family property. In his submission, the father and the daughter cannot, in the facts of this case, constitute a joint family for the purpose of income-tax because there is nothing in law to suggest the daughter must be held to be joint with the father constituting the family. It can as well be that she is joint with mother or brothers. He further contended that since it is incumbent according to s. 304 or Mulla's Hindu Law at page 358, Thirteenth Edition to make provision for maintenance of dependent family members and for marriage expenses of unmarried daughters before ascertaining the property of a male member in partition, in this case provision would evidently have been made for the maintenance and marriage expenses of the unmarried daughter out of the other properties available with the family which may not have been divided and there is no case for considering the assessee with his daughter as constituting joint family. The effect of partition between all the members of the family who are entitled to share is, according to the learned departmental representative, to re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom such partitioned properties from his individual assessment is well founded and rightly accepted by the AAC. The decided authorities referred to in the course of hearing on the question as to whether property held by a sole co-parcener or male member is assessable in his hands as joint Hindu family property or his individual property can be, according to us, classified into three sets of cases. The question whether property received by a co-parcener on partition of a larger HUF constituted by himself, his father and brothers and other members would be his individual or separate property or property of his own joint family made up of himself, his wife or other female members, there being no other male member such as his son who would be a co-parcener, arose for consideration in the following set of cases and it has been held that the property so obtained would be the joint family property. (1) Pratap Narayan vs. CIT.(3) (2) Gajanand Sutwala vs. CWT.(4) (3) Pannalal Rostagi vs. CIT.(5) (4) N.V. Narendranath vs. CWT.(2) Another set of cases made up of Gowli Buddana vs. CIT(1) and P. Pavansa Sadar vs. CIT(13) was concerned with the determination of the question as to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt family property." 6. In N.V. Narendranath vs. CWT(2) it was held that the properties obtained by a coparcener having his wife and two minor daughters but no son on the partition of joint family property continued to retain the character of joint family property. In that context their Lordship pointed out that there was a distinction between two classes of cases (1) where property not originally joint is received by an assessee, and the question has to be asked whether it has acquired the character of joint family property in the hands of the assessee, and (2) where property already impressed with the character of joint family property comes into the hands of the assessee as a single co-parcener and the question that arises is whether it ha retained the character of joint family property or has become converted into separate property. Kalyanji Vithaldas's case(14) was evidently held to fall in the first category of cases, and the case of CIT vs. Comedalli Lakshminarayan(15) was evidently held to fall within the second category of cases stated above. The case of N.V. Narendranath vs. CWT(2) it would appear from the discussion at page 157 of the report was held to fall in the se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that period as income of a HUF represented by Hirday Narain and that there was in fact an existing HUF of which, for a part of the period, Hirday Narain and his wife were member, and for the rest, besides the two, their infant son was a member. It was also observed at page 25 applying the ratio of the decision of Gowli Buddana vs. CWT(1) and N.V. Narendra nath vs. CWT(2) that Hirday Narain received a share in the properties of the HUF of which he and his wife were members and that before the previous year expired, Hirday Narain's wife gave birth to a son on 6th April, 1950. The Court, therefore observed that they are unable to agree that the income accruing between 19th Nov., 1949, and 30th Sept., 1950, could be assessed in the hands of Hirday Narain as an individual. 7. It would be apparent from the facts in this case and the decision that on the partition of the joint Hindu Family property between Hirday Narain and his five sons, the share obtained by Hirday Narain was held to belong to a HUF consisting of himself and his wife for a part of the period considered in the case and also of the minor son for the rest of the period. The facts in that case afford a near parallel to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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