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1996 (4) TMI 117 - SUPREME COURTWhether ITAT is right in upholding the finding of the Appellate Assistant Commissioner that the transaction recorded in the document dated February 11, 1965, is only a partition and not a gift to the extent of the shares allotted to the two sons of the assessee ? Held that:- The clear finding of the Appellate Assistant Commissioner whose decision was affirmed by the Tribunal is that it was by means of a partition of the family property in Malayalam Era 1095, corresponding to 1919 A.D. that the assessee came into possession of most of the properties in question and the earnings from the family properties provided the nucleus for acquisition of the other properties which were then included in the family properties and which were the subject-matter of the partition made between the assessee and his children. It was clearly held that this partition made in the year 1919 A.D. between the assessee and his brothers was of coparcenary property and the entire corpus covered by the partition deed on February 11, 1965, is the coparcenary property of the assessee's family. This finding of fact was not challenged before the Tribunal and the Tribunal's judgment of affirmance must be construed as based on this finding as well. Even in the High Court, this finding remained unassailed and the High Court without adverting to this finding of fact relating to the personal law applicable to the assessee's family, has reversed the decision of the Tribunal. It may also be mentioned that the decision against the assessee has been rendered on the basis that the assessee has failed to discharge the burden of proof---the applicability of the rule of survivorship to his family. It is sufficient to observe that the above clear finding on this question in favour of the assessee discharges that burden, if any, on the assessee to prove this fact. There being no evidence to the contrary, this clear finding of fact in the assessee's favour is sufficient to decide the above-quoted question in favour of the assessee
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