TMI Blog1977 (5) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... nclusion of the one-third share income of rent from the aforesaid property in his assessments for these years and the appellate authority did not deal with the question also. Against the consolidated decision of the appellate authority, the petitioner carried six revisions as already noted to the Commissioner of Income-tax and claimed that the inclusion Of the one-third share income from the said property in the respective assessments of the petitioner as an individual was unjustified and illegal. According to the petitioner, the Hindu joint family of which the petitioner is a member is the owner of the properties in question and income earned from the properties belonged to the Hindu undivided family which under the income-tax law was a unit for assessment. There was no provision for adding the income of the Hindu undivided family in the hands of an individual constituting a family. Before the Commissioner, the following genealogy was placed. Tarini Sur (died 1923) Sarat Hema Satish Suren (died 1931) (died 1934) (died 1954) (died 1963) Ramachandra Satyabadi(died in Mruganka Purnanka Sasanka Akhoya Ajit 1965) Samdarshan Sudarsan Priyadarshan Sisir Mihir Samir Belar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... persons. The presumption regarding a Hindu undivided family available under the Mitakshara school of Hindu law ordinarily would not extend to a Dayabhaga family in the same manner, though there are certain authorities to say that there is some presumption. We may refer to a Bench decision of the Calcutta High Court in the case of Smt. Charandasi Debi v. Kanai Lal Moitra AIR 1955 Cal 206, where it has been observed: "The normal state of every Hindu family is joint, presumably joint in food, worship and estate and, until the contrary is proved, the presumption is that the family continues joint. The presumption is stronger in the case of brothers than in the case of cousins. A joint Hindu family under the Dayabhaga, like a Mitakshara family, is normally joint in food, worship and estate. Under the Dayabhaga law there cannot be a joint family consisting of the father and the sons; so long as the father is alive he is the master. But after the death of the father, the test to see whether the sons constituted a joint Hindu family is whether they were joint in food, worship and estate. But the simple fact that the brothers lived in separate portions of the same ancestral house after th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nds of appeal challenging the property of 1/3rd share income of rent returned as an item of assessment but in course of argument of the appeals it was canvassed before the Appellate Assistant Commissioner of Income-tax regarding the correctness of assessment of 1/3rd share income of rent notwithstanding the fact that the petitioner voluntarily offered the said item of income for assessment under the head 'House property'. That the learned Appellate Assistant Commissioner of Income-tax, Special 'A' Range, Cuttack, by his order dated November 17, 1973, without going into the question regarding includibility of 1/3rd share income of house property decided the appeals on other grounds." Petitioner has nowhere indicated that he was personally present when the matter was heard and was aware of such a ground having been canvassed at the hearing. In the revision applications, we do not find any categorical assertion that the appellate authority had missed a vital point argued in support of the appeals. In the circumstances, we are prepared to accept learned standing counsel's contention that the question was for the first time mooted before the Commissioner. Mr. Mohanty for the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee was in dispute and the court found that as the objection to the place of assessment was not specifically raised, the matter must be taken to have been concluded. This too does not support the assessee's stand. The Calcutta decision reported in [1953] 24 ITR 576 was considering the applicability of the principle of estoppel. The assessee, as the sole residury legatee under a will, brought a suit against the executors and had been appointed as receiver by the court. He had been put in possession of the estate, but as the administration of the estate by the executors had not been completed and the assessment proceeding against them for the assessment year 1944-45 was still pending, the High Court gave the assessee the liberty to apply for substitution in legal proceedings pending against the estate. On the application of the assessee, he was substituted for the executors by the Income-tax Officer and assessment was completed. The question for consideration was whether the substitution of the assessee pursuant to the order of the High Court validated the assessment on him ? The court found that under the Income-tax Act he could not be an assessee and, therefore, his substitut ..... X X X X Extracts X X X X X X X X Extracts X X X X
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