9911796707
TMI Blog1986 (1) TMI 135X X X X Extracts X X X X X X X X Extracts X X X X ..... ied and his legal heir A.S. Kalkundri appears to have challenged the assessment for the year 1972-73. It is noticed that the return filed by the late Shri S.V. Kalkundri is in the status of an HUF. 2. When the gift-tax assessment proceedings started under section 15(3) of the Gift-tax Act, 1958 ('the Act'), for the assessment year 1973-74, Shri A.S. Kalkundri contended that as the property was that of the HUF no gift could have been made to him and as such his father was not liable to gift-tax. The GTO held as follows: "... In a sense, the assessee claims that the property gifted was an HUF property, who is having equal right in the same and, therefore, the gift is exempt. The assessee's contention cannot be accepted. Late Sri Srinivas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulkundri. It appears that three daughters of Shri S.V. Kalkundri have already been married off. The taxing authorities having already granted the status of an HUF in the wealth-tax assessments, cannot easily resile from that stand. Once the status of an HUF is granted, the father will not have the power of gifting away the joint family property except under certain circumstances and to the extent prescribed under the Hindu law. These are dealt with in articles 225 and 226 of Mulla's Hindu Law, 15th edition. For our purpose article 226 is important. This runs as follows: "226. Gift by father or other managing member of ancestral immovable property within reasonable limits---Hindu father or other managing member has power to make a gift wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad to dispose of his separate property by gift or will. There was no implied contract on the part of the adoptive father, in consideration of the gift of his son by the natural father or mother, that he would not dispose of his property by gift or will. When, however, an adoption was made by a member of a joint family governed by the Mitakshara law, the adopted son became a member of the coparcenary from the moment of his adoption, and the adoptive father had no power either by deed or will to interfere with the rights of survivorship of the adopted son in the coparcenary property. The same principle applied where an adoption was made by a sole surviving coparcener. It must have been noticed from section 30 of the Hindu Succession Act, 1956 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ather to dispose of the property is as regards his separate property and not joint family property. The moment a son is adopted, he becomes a member of the family and will have the rights of a coparcener in the joint family property. The case of the revenue would have been quite different if the status of S.V. Kalkundri had been taken as that of an individual and the properties in question belonged to him in his individual capacity. Having once granted the status of an HUF the complexion of the problem changes. The revenue's reliance on the narration in the gift deed, which points out that the assessee was the absolute owner of the property, will not be of any help in the light of the taxing authorities' acquiescence in the status issue. We ..... X X X X Extracts X X X X X X X X Extracts X X X X
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