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TMI Blog1983 (6) TMI 64X X X X Extracts X X X X X X X X Extracts X X X X ..... n of late Tilak Ram. The father owned 47 Kanals and 12 Marlas of land in Village Sohena, Tehl. kharer. There were also deposits in Post Office and with the firm of M/s Kulwant Raj Gian Chand. As contended before the AAC these were inherited properties of Shri Tilak Ram. There is nothing to controvert this fact. However on 29th March, 1971 late Tilak Ram executed Will wherein he recorded that he had earlier executed a Will dt. 5th January, 1958/15th January, 1959 which he had cancelled, and the cancelled Will will have no effect. He further stated that, "the entire property, whether moveable or immovable, all kinds of gardens and property, whether agricultural or residential, situated in Village Bariwala, Sohana and Bhabat, Tehsil Kharar, or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eturn had been filed in the status of HUF, a protective assessment was raised on the basis of the return in the status of HUF. This is that assessment that went in appeal before the AAC on which her impugned order is before us. 5. It is embedded in the order of the AAC that the property being ancestral in character, whatever Shri Rattan Lal Aggarwal received could not be treated but belonging to the HUF and the income from such properties was to be taxed in the status of HUF. She, therefore, held that the ITO erred in making the protective assessment in the status of HUF. This has been converted into a substantive assessment. This decision was arrived at by the AAC also taking into account that for the asst. yr. 1979-80 both the ITO and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e could dispose of by testamentary disposal only 1/4the share which belonged to him. Therefore, 3/4th share of the property which is shown as disposed of will remain HUF property. 7. It was, however, contended that the Will is void ab initio because it was meant to dispose of the entire HUF property which could not be done by any coparcener of Karta being a Hindu governed by the Mitakshara School of Hindu Law. The ratio decidendi of the Gujarat High Court judgment in the case of Dr. Babubhai Mansukhbhai (deceased) (1977) 108 ITR 417 (Guj) was applicable to the facts of the case. As such the entire income shown by Shri Rattan Lal Aggarwal in the return of the HUF belonged to the HUF. There is, therefore, no need for an interference in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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