9911796707
TMI Blog1983 (3) TMI 82X X X X Extracts X X X X X X X X Extracts X X X X ..... . 2. The circumstances under which the Commissioner interfered with the assessment are, the individual assessee threw 17,500 equity shares of the Great Eastern Shipping Co., individually held by him into the common hotchpotch of his joint family by a declaration made on 26-10-1970. The then existing members of the HUF included the assessee, his wife and minor children. According to the Commissioner, the question was whether apart from the individual's own shares, the shares of his wife, minor son and unmarried minor daughter were not to be included in his individual wealth-tax assessment. Before the Commissioner it was represented that these assets had already been included in the net wealth of the Hindu joint family and assessed. It was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctive effect which was bad in law. There was an option with the WTO to assess the property in the hands of the individual or the HUF. The asset having been already included in the hands of the latter, could not again be included in the hands of the former, the transferor. There is no mistake committed by the WTO or any error leading to prejudice against the revenue. 4. It is also pointed out that the amendment to section 4 was brought into effect to confront the mischief created by individual assessees throwing property into the common hotchpotch of joint families. This has reference only to the case of a larger HUF, in this case that of the assessee, his brother and mother. It cannot have any effect on the net wealth of the assessabilit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... flict pointed out between the interest of the larger and the smaller family, therefore, does not arise. It is also pointed out that the Commissioner at best directed making certain enquiries. This is in consonance with his power and the jurisdiction he has. 6. The individual assessee is a member of a larger HUF consisting of his mother and brother and also of a smaller HUF consisting of his wife and minor children. Apparently by the declaration dated 26-10-1970, the individual threw into common hotchpotch of the smaller HUF certain assets. The revenue's attempt to bring to tax the proportionate share of the wife and minor children relevant to the property thrown into the common hotchpotch is directed against the smaller family referred t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seems to serve no purpose. The property considered is the converted property. In the case of a HUF, no member can predicate at any time a share of property going to him much less can he refer to any particular item of property he obtains on partition --- Addanki Narayanappa v. Bhaskara Krishnappa AIR 1966 (SC) 1300. If the family had other property after the alleged throwing into the common hotchpotch on even a notional partition, the entire property was to be regarded as divided. It would be difficult in such a case to say that the assessee or his wife or the minor child got the converted property or a portion thereof on partition. The fiction, therefore, had to apply on the basis if it was to be effective, that the family has no other pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not purport to have retrospective operation. What is, therefore, to be included is not the converted property or if there be a partition the converted property or any part thereof received by the spouse, minor child, etc., but the converted property, etc., to ' the extent attributable to the interest of the individual in the property of the family '. This latter expression defined in the pre 1975 provisions in Explanation (d) refers to the proportion in which the individual, the wife or minor child would be entitled to the share of the property if there be a total partition on the valuation date. What we are concerned in the present case, therefore, is as under the pre-amended provision the property includible on the basis of a notional par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther, etc. A partition, therefore, in the singular would first have relevance to the partition of the major HUF. Such a partition would enable the assessee to obtain a share of the property belonging to the major HUF. Where the property has been not thrown into the major HUF in the first place, no question of a notional partition of that major HUF is relevant for our purpose. Where allegedly the major HUF remains full and not partitioned, there is no legal relevance to a partition of the smaller HUF. If the Explanation has used ' partitions ' in the plural instead of a single partition, it might perhaps be possible to have notional partition in the major family in the first instance and another partition of the minor family in the second. A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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