TMI Blog2000 (3) TMI 188X X X X Extracts X X X X X X X X Extracts X X X X ..... r dated 27-3-1989 in ITA No.379/87-88 held that the assessee is assessable in respect of the income from house property and capital gains in the status of HUF since the income arose out of the HUF properties. The Revenue is aggrieved. 3. The department has taken a specific ground that the CIT (Appeals) has not applied the decision of the Madhya Pradesh High Court in the case of CITv. Vishnukumar Bhaiya [1986] 142 ITR 357. The learned departmental representative pointed out that unless a son is born to the assessee, he cannot constitute an HUF. According to him, the issue is to be decided in favour of the Revenue in the light of the decision of the Supreme Court in the case of Surjit Lal Chhabda v. CIT[1975] 101 ITR 776. 4. We have carefully considered the Revenue's submissions in the light of the material on record. The Mysore High Court in the case of C Krishna Prasadv. CIT[1970] 75 ITR 526 was concerned with an assessee who was not married at the time of partition. The High Court at page 528 observed as under:-- "No doubt when he marries and has a wife, he would be entitled to be assessed in the status of HUF." This decision of the Mysore High Court has been approved by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case squarely fit in to the decision of the Hon'ble Supreme Court in the case of Surjit Lal Chhabda which has been followed by the Madhya Pradesh High Court in the case of Vishnukumar Bhaiya. 7. My brother has recorded the facts correctly and therefore there is no need on my part to repeat the facts. 8. The Hon'ble Supreme Court in the case of C. Krishna Prasad affirming the decision of the Mysore High Court in C. Krishna Prasad's case have held at page 496 that the assessment in the status of an HUF can be made only when there are two or more Members of the HUF. Again at page 497 of the said reports, their Lordships have observed as follows: "Even if the assessee-appellant in future introduces a new member into the family by adoption or otherwise, his present full ownership of the property cannot be affected. Such a new member on becoming a member of the coparcenary would be entitled to such share in the property as would remain undisposed of by the assessee. In order to determine the status of the assessee for the purpose of income-tax we have to look to the relatives as they exist at present and it would not be correct to project into the matter future possibilities which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with him be members of a Hindu undivided family and not of a coparcenary. In the words of Sir George Rankin, who delivered the opinion of the Judicial Committee in Kalyanji's case: "The phrase 'Hindu undivided family' is used in the statute with reference, not to one school only Hindu law, but to all schools; and their Lordships think it a mistake in method to begin by pasting over the wider phrase of the Act the words 'Hindu coparcenary', all the more that it is not possible to say on the face of the Act that no female can be a member." While concluding the judgment, their Lordships in the case of Surjit Lal Chhabda have further 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. Their rights in that property are not enlarged for the reason that the property was thrown into the family hotchpot. Not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e order of the CIT(A) passed under section 143(b) of the Income-tax Act, 1961. There is unanimity in identifying and referring their point of the difference by the referral order dated 3-3-1998 made under section 255(4) of the Income-tax Act, 1961 and the point of difference is as follows:-- "Whether, on the facts and in the circumstances of the case, the assessee is assessable, in respect of the income from house property and capital gains, in the status of the Hindu Undivided Family?" As Third Member nominated by the Hon'ble President, Income-tax Appellate Tribunal, I proceed to resolve the above point of difference. 2. The relevant facts are: The assessee is an individual. There was a partition between the assessee and his father in 1960 when the assessee was not married. He got married on 11-9-1984. As on 31-3-1985, which was the previous year relevant for the assessment year 1985-86, the assessee had got only one daughter. In respect of the income from the properties which he got on partition of the H.U.F., he returned the same in the status of H.U.F. The Assessing Officer however assessed the entire income in the individual status. The CIT (Appeals), following his own o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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