9911796707
TMI Blog1980 (4) TMI 142X X X X Extracts X X X X X X X X Extracts X X X X ..... h which we are concerned for the reasons stated in an earlier order for the year 1975-76. The ITO held that the assessee has not been able to prove that the property belonged to the HUF. In this view of the matter, he brought to tax a sum of Rs. 1,365 in this year. 2. The assessee appealed to the AAC. It was submitted that the property was purchased in the year 1959 by the father of the assessee from out of the income of the agricultural properties and that such agricultural properties were ancestral properties even in the hands of the assessee's father. In support of the claim that they are ancestral properties a letter from the `Karnam' of Poonapally was filed. When the property was purchased the assessee was student. The claim of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g to him in his individual capacity in the earlier returns and held that this property cannot be treated as belonging to the family. He also stated that the assessee cannot be said to have been holding the property benami for the HUF. He dismissed the appeal. 3. The assessee has come on second appeal. The learned counsel submitted that in the face of the finding of the AAC that the source of the funds came out of the ancestral agricultural income he should have deleted the income from property from the individual assessment of the assessee. The AAC failed to discharge the onus of proving that there was a gift from the Karta to the assessee. The Karta of a HUF could not make a gift of immovable property unless it is for pious purposes and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h necessary evidence in support of his stand. The property in question is situate at 296/23, 11th cross, Wilson Garden, Bangalore. From the facts it is now clear that the property was purchased out of the income of the agricultural properties which stood in the name of the assessee's father at the time when the purchase was made in 1959 and there is also evidence on record to show that the agricultural properties themselves in the hands of the father were ancestral. Where a property is purchased in the name of a member of the family when they remain joint and it is shown that it has come out of the family nucleus then it would be a property of the family. On the basis of this it is clear that this is an ancestral property and it cannot be c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee and the mere fact that the assessee has shown it in his returns will not be a bar for its exclusion in this year because, in our opinion, the assessee has successfully established that the property does not belong to him in his individual capacity. The argument that it was held by him benami for the HUF does not merit any consideration. A property of a family usually does not stand in the name of the family as such but it will have to be held by a Karta or any coparcener or a member of the family and to ascertain whether it is a family property or not the source has to be looked into. There can be no question of one of the members of the family owning the property benami for the family. 6. In the result, we allow the appeal and hol ..... X X X X Extracts X X X X X X X X Extracts X X X X
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