9911796707
TMI Blog1979 (2) TMI 124X X X X Extracts X X X X X X X X Extracts X X X X ..... ad been registered on 11th Aug., 1971. The sale proceeds were credited to the respective accounts of the members on 13th Aug., 1971. The ITO had recorded that the partition qua the plots of land at Mal Road and Railway Road, Karnal took place but it can be recognised only w.e.f. 13th Aug., 1971. The assessee had filed an appeal against that order and the AAC held that the ITO was wrong in recognising the partition w.e.f. 13th Aug., 1971 because the claim before him was that partial partition took place on 22nd Oct., 1970. The AAC's order was brought in appeal before the Tribunal. The Tribunal in ITA No. 611 of 1976-77 dt. 8th Aug., 1978, reversed the order of the AAC and restored the order of the ITO. The assessee had filed a reference agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thus became the property of the assessee and were held as such. 6. On 22nd Oct., 1970, the assessee was constituted by its Karta, his three sons and wife of the Karta. Thus there were five members of the family. These members of the family by an oral agreement affected a partial partition with regard to these plots. This partial partition was confirmed by memorandum of partition on 16th Nov., 1970. These plots were sold and the sale deed was registered on 11th Aug., 1971. The capital gains arising therefrom, it was contended therefore, is not taxable in the hands of the assessee HUF. 7. It was submitted that the property ceased to be the property of the HUF under Hindu Law w.e.f. 22nd Oct., 1970 and it belonged to the members individu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wing the plots into common hotch potch, there would apparently be no capital gains taxable in the hands of the HUF. 10. The Revenue opposed these submissions and Shri C.S. Jain, the Sr. learned Departmental Representative contended that the assessee is importing into the Act the provisions of Hindu Law which are irrelevant in so far as the recognition of a partition under s. 171 is concerned. In this regard, he submitted that the rule of construction to be applied in this case is as expressed in the maxim generallia specialibus non derogant. Since s. 171 is a special enactment laying down conditions for recognition of partial or total partition, it overrides the provisions of Hindu Law. The provisions of Hindu Law are general in nature a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not made out a justification for an interference in the order of the AAC and the appeal deserves to be dismissed. 14. We have considered the rival submissions and we are of the opinion that the assessee is entitled to succeed on the ground that after the oral partition on 22nd Oct., 1970 the plots did not belong to the HUF in the sense that the income accruing and arising therefrom could not be brought to tax as the income of the HUF. It can be taxed only as the income of the members according to their shares. For this proposition, the reliance placed by the learned Counsel for the assessee on the Allahabad High Court Judgement in the case of M/s. Kalloomal Tapeshwari Prasad(1) meets the point at issue in this case. This case is clearly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts which has ceased to belong to the joint family in the assessment of the joint family. 15. In the present case on the ratio of this decision we find that the oral partial partition on 22nd Oct., 1970 has not been questioned. It has only been held that that could not be recognised in view the provisions of s. 171. But the Allahabad High Court has held that the oral partition was valid in Hindu Law and it disrupted the joint status of the members in regard to the immovable property being the subject matter of oral partition. Since that day the members will be deemed to hold these properties as tenants-in-common and not as joint tenants with the result that these properties ceased to belong to the coparcenery of the joint Hindu family. T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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