TMI Blog1998 (12) TMI 49X X X X Extracts X X X X X X X X Extracts X X X X ..... t year with which we are concerned is 1982-83. The assessee filed a WT return disclosing the wealth of the assessee in the capacity of a specified HUF. The return filed for the year 1982-83 was the very first return filed by the assessee under the WT Act and that return was Wed under the amnesty scheme. The claim made by him in a revised return subsequently filed that he should be assessed as an individual for the asst. yr. 1982-83 was rejected by the ITO. The assessee was assessed as a specified HUF. In appeal, the Dy. CIT(A) accepted the assessee's claim that he should be treated as an individual. However, on further appeal to the Tribunal, the order of the ITO was restored. The assessee is now before us seeking answers to the two questio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f there is a plurality of persons within the family who can claim a share in the property. As neither the daughter nor the wife could claim a share in the property, the property though ancestral to the assessee could not be regarded as property belonging to the HUF. 5. Learned counsel for the assessee further submitted that as the assessee was a bachelor at the time of the petition in the year 1952, the property which came to vest in him after the partition was the property which he was free to deal with as he liked, and that property did not assume or resume the character of property of an HUF when the assessee subsequently acquired a family. 6. Learned counsel placed reliance on the decision of the Supreme Court in the case of Surji ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sapindaship. The wife and unmarried daughter are members of his family. He is not by agreement making them so. And as a Hindu male, he himself can be the stock of a fresh decent so as to be able to constitute an undivided family with his wife and daughter." 8. With regard to the facts of that case, the Court observed as under : "Kathoke Lodge was not an asset of a pre-existing joint family of which the appellant was a member. It became an item of joint family property for the first time when the appellant threw what was his separate property into the family hotchpot. The appellant has no son. His wife and unmarried daughter were entitled to be maintained by him from out of the income of Kathoke Lodge while it was his separate property ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of a sole surviving coparcener. Though such a sole surviving coparcener may be assessable as an individual, as he cannot be said to have a family, unless there are in fact present female members in the family, the character of the property continues unaltered as joint family property, though for the time being if is not shared with any other member of the family and may or may not be subject to any charge in favour of anyone else for any purpose. 10. In cases where an HUF exists but does not have an ancestral property and the property is sought to be treated for the first time as belonging to the HUF, before it can be so treated as property belonging to a joint family, such a family should have at least two members capable of claimin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been held earlier by a coparcenary in which a member of that family was one of the coparceners. 13. In the case of N.V. Narendranath vs. CWT (1969) 74 ITR 190 (SC) : TC 65R.557 the apex Court held that the ancestral property allotted to a member whose family consisting of himself, his wife and his daughter was the property belonging to the HUF and required to be assessed as such, notwithstanding the absence of a son who alone could claim partition. In that case, the two factors referred to earlier coalesced-there existed a family and property was ancestral. The Supreme Court disagreed with the High Court which had held that in the absence of a son who could claim a partition, the property though ancestral was only to be assessed as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of CIT vs. Shankar Lal Budhia (1987) 61 CTR (Pat)(FB) 298 : (1987) 165 ITR 380 (Pat)(FB) : TC 37R.263 and that of the Madhya Pradesh High Court in the case of CIT vs. Vishnukumar Bhaiya (1983) 35 CTR (MP) 38 : (1983) 142 ITR 357 (MP) : TC 35R.262. With great respect to the learned Judges who decided those cases, we are unable to agree with that line of reasoning. 17. Learned counsel for the Revenue, on the other hand, referred to the decisions of the Allahabad, Karnataka and Andhra Pradesh High Courts in the case of Premkumar vs. CIT (1980) 121 ITR 347 (All): TC 37R.254, Bharath Kumar D. Bhatia vs. CIT (1992) 108 CTR (Kar) 351 : (1993) 199 ITR 190 (Kar) : TC 37R.201, Ashok Kumar Ratanchand vs. CIT (1991) 93 CTR (AP) 202 : (1990) 18 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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