TMI Blog1981 (2) TMI 129X X X X Extracts X X X X X X X X Extracts X X X X ..... 69 whereby the two branches represented by them separated and constituted smaller HUF's (hereinafter referred to as " HUF's " only) comprising of : (1) Shri Premchand (self), Smt. Sushilabai (wife), Shri Narsing Prasad and Shri Poonamchand (sons), (2) Shri Sardarilal (self), Smt. Jankibai (wife) and Shri Parsuram (son). The aforesaid HUF's have also undergone complete partition as per the deed of partition dated 27-10-1970. The partition has been not only between the father and son/sons but also with the wives inasmuch as they have also received their share in the HUF property at the time of the partition, i.e., equal to that of a son as per the shastric Hindu law. Both Shri Premchand and Shri Sardarilal are, it is common ground, residing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al, HUF and so on, the status is and can be determined only by analysing the nature of the rights of all persons enjoying or having some interest in the income which is the subject-matter of assessment ; (iv) separated members can, if at all, constitute a HUF only if they reunite as laid down in paragraphs 342 to 344 of Mulla's Hindu Law ; and (v) the effect of partition is to dissolve the coparcenary with the result that the separating members thenceforth hold their respective shares as separate property qua the separated members but if a separating member has other persons with him who have some interest in the property so received by him on partition, the property may retain the character of joint family property. 7. Moreover, the Inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... department that the property received by the assessee and his wife as their share on partition is owned and is being enjoyed by the husband and wife together. That apart, reunion can perhaps be amongst coparceners only. 9. It may be mentioned that number of decisions were cited by the parties. For the sake of completeness, we will briefly refer to them to show that all except last two decisions are not applicable. 9.1 The facts in the Supreme Court's decision in the case of C. Krishna Prasad v. CIT [1974] 97 ITR 493 are that Shri Krishna Prasad was unmarried at the time of the partition. He claimed the status of HUF. It was held that a family signifies a group. Plurality of persons is an essential attribute of a family. A single person, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ull Bench of the Andhra Pradesh High Court has followed the Punjab and Haryana High Court's decision in the case of Dharam Pal Sat Dev v. CIT [1974] 97 ITR 302 and the Calcutta High Court's decision in the case of Sandersons Morgans v. ITO [1973] 87 ITR 270 approved its own earlier decision in the case of CIT v. T. Veeraraghavulu Chetty Sons Co. [1975] 100 ITR 723 (AP) and dissented from the Allahabad High Court's decision in the case of CIT v. Shiv Shanker Lal Ram Nath [1977] 106 ITR 342 and the decision of the Full Bench in Dahi Laxmi Dal Factory v. ITO [1976] 103 ITR 517 (All.). 9.4 The principle laid down in the Patna High Court's decision in the case of Panna Lal Rastogi v. CIT [1967] 65 ITR 592 is that the test to be applied in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... operty received on partition. It was held that the HUF came into existence on marriage. The facts of this case are also different from the one before us. 9.7 The facts in the Supreme Court's decision in the case of Gowli Buddanna v. CIT [1966] 60 ITR 293 were : there was a HUF consisting of A, his wife and two unmarried daughters and his adopted son B. A died. The question that arose was regarding the status of the remaining members of the family as there had remained only the sole surviving coparcener. The distinction between the Hindu coparcenary and a HUF was noted and it was held that there being so many persons having some interest in the property, the assessee was assessable in the status of HUF. 10. On the other hand, the followi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the family hotchpot. Thereafter, he claimed that the income from the said property was assessable in the status of a HUF. It was held that though the assessee, his wife and the unmarried daughter were members of a HUF, the income was chargeable to income-tax in the appellant's hands as his individual income. Though the facts in this case are different, the decision indirectly supports the view we have taken. 11. Having regard to the above discussion, we hold that the very fact that the assessees herein are residing with their separated respective wives, the character of the property, which the assessees received on partition of the family whereby their respective wives had also received a share and then separated, will be individual an ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
