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TMI Blog1985 (3) TMI 128X X X X Extracts X X X X X X X X Extracts X X X X ..... rd share and therefore, both the Assistant Controller and the Appellate Controller were not justified in confirming the inclusion of the value of the entire immovable property as passing on the death of the deceased. 2. There is also a ground relating to the valuation of immovable property. These are dealt with as under. 3. The deceased died on 24th Feb., 1980. it was claimed, that prior to 1959, the deceased along with his wife Smt. Ridhibai and two Sons Satyanarayan and Dwarkadas formed HUF. It was stated, that, Shri Satyanarayan got separated from the joint family on the basis of an oral partition in 1959. Therefore, it would appear, the deceased, his wife and Shri Dwarkadas continued to be members of HUF M/s Birdichand Kanhaiyalal which, interalia, carried on the family business in grains, kirana, etc. it was also claimed, that there was partial partition with respect to the business assets of the joint family between the deceased and his son Dwarkadas on 16th Nov., 1973 and thereafter, they formed a partnership to carry on the same business under the same name and style. The stand of the appellant before the Assistant Controller was, that, no share was allotted to Smt. Ridhi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eliance was placed on Radheyshyam vs. Asstt. CED (1980) 18 CIT (Trib) 9 (Jp) and Bhimraj Saremal vs. CED (1981) 24 CTR (Guj) 126 : (1981) 132 ITR 35 (Guj). While dealing with these contentions, the Appellate Controller noticed that, there were no deeds of the oral partition or the partial partition in 1963. He also found, that, there were no orders under s. 171 (3) recognising the partitions in question. He found, that the only basis on which the claim of the appellant was founded was the narration in the partnership deed dt. 20 Dec., 1963 referred and extracted earlier. He also noticed, that, the Inspector's report was to the effect that the income-tax return for the asst. yr. 1966-67 was filed in the status of an individual showing the income from the house property and share of profit form the firm. Accordingly, he was of the opinion, that the matter in this regard was not clear and free from doubt. However, considering the issue from the angle, namely, whether the husband and wife could form an HUF in such a manner, that on the death of the husband only 1/2 share of the value of the assets could be said to have passed, the Appellate Controller found overwhelming authority again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of her son, she was entitled to 50per cent of the movable assets at the time of her husband's death. As regards the immovable property, it was submitted, that, the husband, wife and the son had continued to be joint till the death of the husband and, therefore, each of them had a 1/3rd share in the property and under s. 7 read with s. 39 of the ED Act, only 1/3rd share of the same could be deemed to have passed on the death of the deceased. Reference was made to CED vs. Smt. Rani Bahu (1981) 25 CTR (MP) 332 (FB) : (1983) 142 ITR 843 (MP) (FB), Smt. Ramkunwar Bai vs. CED (1983) 142 ITR 852 (MP), CED vs. Kanhaiyalal (1983) 35 CTR (MP) 58 : (1983) 142 ITR 868 (MP) and (1981) 24 CTR (Guj) 216 : (1981) 132 ITR 35 (Guj). 6. The submission made oi behalf on the Department by the ld. Departmental Representative may be summarised as under: The partition that took place between the deceased and his son in 1963 was a partial partition with respect to movable property inclusive of business assets as also between the coparceners. There was no question of allotment of any share in the property partitioned to the wife of the deceased. As she was specifically excluded from the partial partiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wife The Asstt. CED held, that, the property received on partial partition by the deceased belonged to him exclusively and the same passed on his death. The Appellate Controller having accepted the accountable person's contention on an appeal filed by the latter, the Department preferred an appeal to the Tribunal, which restored the order of the Assistant Controller. In this connection, the High Court while considering the matter on an appeal filed by the accountable person analysed the facts of the case as under: "The ownership in the property obtained by the deceased on partition was not shared by him although the deceased and his wife constituted an HUF The deceased has no son. There was thus no coparceners in his family. Speaking generally female members in an HUF have no ownership in the property belonging to the family. The ownership of such a property is held by a smaller body which is called the coparcenary and in case there is only one coparceners, it is he alone who owns the entire property. It is true that for purposes of assessment of income tax, the status of the deceased was that of HUF family as he and his wife constituted the family but different considerations pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the partition was partial as regards the person sharing in it, there was no question of the deceased's wife remaining joint with her husband, in regard to the share of property allotted to him on such a partial partition. The share allotted to the deceased on partial partition, on the same analogy as in the above mentioned case would be his absolute property with respect to which he has full powers of disposition and, therefore, the property should be considered to have passed under s. 5 or under s. 6 as well. There is no question of the property having deemed to pass under s. 7 read with s. 39 (1) Since the entire property received on partial partition vested in the deceased solely, the entire property passed on his death. We respectfully rely on the analogy of the judgment of the Madhya Pradesh High Court in coming to this conclusion and also distinguishing the decisions in the other cases relied upon by the appellant. 8. As regards the immovable property, we agree with the appellant, that, since the family consisting of the deceased, his wife and son remained joint in respect of the same, the deceased had only 1/3rd share in the same. As mentioned by us earlier, a wife is ent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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