TMI Blog1983 (11) TMI 157X X X X Extracts X X X X X X X X Extracts X X X X ..... hased a plot of land A-10, Vijay Path, Tilak Nagar, Jaipur under a sale deed registered on 17th June, 1965 and constructed a house thereon. The case of the Accountable Person is that the deceased had relinquished Dayabhaga Law and switched over to Mitakshra Law that obtained in the State of Rajasthan where he wanted to settle down. It is said that the deceased, by means of a declaration dt. 5th May, 1969, had impressed his house property No. A-10, Vijay Path, Tilak Nagar, Jaipur with the character of joint family, which comprised the deceased, his wife and his son. The case is that from the date of declaration dt. 5th May, 1969, the said property belonged to the HUF of the deceased and it ceased to be the individual property of the deceased ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... property in question ceased to be the individual property of the deceased and that became the property of the HUF. He also pointed out that the deceased having thrown the house property into the common hotch potch, filed returns regarding income from this property in the status of HUF and the assessments had been made on the HUF and not on the deceased individually. He, therefore, directed the ACED to rectify the mistake and make the assessment taking the house property as the property of the HUF. 2. Aggrieved, the Revenue has come up in appeal to the Tribunal. Shri Vashistha, learned counsel for the Accountable Person and Shri Saxena, learned Departmental Representative argued the case before us. The contention of the Revenue is that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dispute is whether the deceased, in fact, switched on to Mitakshra Law from the Dayabhaga Law. We accept the Revenue s contention that to prove the shifting from Dayabhaga Law to Mitakshra Law, the onus will be on the Accountable Person. To discharge this onus, the Accountable Person filed the declaration dt. 5th June, 1969 and the two affidavits: one of her own and another of her brother. The declaration dt. 5th June, 1969 does not provide any evidence of the fact that the deceased had shifted to Mitakshra Law from Dayabhaga Law. It simply provides evidence of the fact that the deceased had impressed his separate property with the character of HUF property on his own volition. In their affidavits, the Accountable Person and her brother do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ga Law and Mitakshra Law and that the same position, which holds good under the Mitakshra Law, obtains in the Dayabhaga Law. To support his contention, he relied on a decision of Hon ble Calcutta High Court in the case of CIT vs. P.N. Talukdar (1982) 135 ITR 628 (Cal). In this authority, a person, who was admittedly governed by Dayabhaga Law, had three sons, one of them being an assessee and two daughters. During the accounting year, the assessee had lived with his three sons, all of them being minors at that time and with his wife. The assessee s father had left two properties: one at Deoghar and another at Calcutta. The assessee made a declaration on 19th April, 1969, by which he had thrown on his own volition the house property situated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s case is, whether the house property at No. 5 Sunny Park, Calcutta, which admittedly was the self-acquired property of the assessee, since deceased, became an HUF property. The second question which requires consideration as a matter of course is, whether the property was liable to be included in the total income of the assessee". Having quoted the relevant law extensively, the High Court found on p. 645 as follows: "In this case there is no doubt that the declaration has not been disputed. The declaration is categorical and by the conduct and act of the assessee the self-acquired property of the assessee had become joint HUF family property and, therefore, the income of the said property cannot be assessed as the income of the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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