TMI Blog1986 (7) TMI 216X X X X Extracts X X X X X X X X Extracts X X X X ..... s time barred by one year and seven days to reopen the assessment under s. 17(1)(b) of the WT Act. He has further contended that in the notice, nothing is mentioned whether the assessment is reopened under sub-s. (1)(a) or (1)(b) of s. 17 and for this reason also the show cause notice issued to reopen the assessment is bad in law. It is urged that if both the claimants, i.e. assessee himself and sisters claim that the property belonged to the HUF then no one can interfere in the matter of status, if there is no evidence to prove otherwise. It is urged that the Department has no proof to hold the property as individual property and therefore, the addition of HUF property in the hands of individual is not proper and bad in law. 3. The assessee's ld. representative Shri A.G. Deshpande has further extended his arguments that there is an evidence on record i.e. sale deed of the old property and the affidavits of both the claimants of the property are on record. Affidavit of the goldsmith and the witness to the panchanama also have been filed. It is further urged that the stridhana of the wife of the assessee also cannot be considered as the property of the assessee individual. Similar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee's parents at their native place. Balance of the consideration from the sale proceeds of the house property at Pune of Rs. 6,900 were also introduced in the money lending business against pledge of gold and silver ornaments. 7. Shri Deshoande for the assessee has submitted that gold was at the rate of Rs. 70 per tola during those days before 1956. The assessee's mother after the death of her husband was having a sound financial position to purchase minimum 900 grams of gold for Rs. 6,900 and if she could have continued to do the money lending business then she was in position to get pledged 1800 grams of gold against the investment of Rs. 6,900. She was having gold bangles. The assessee himself and his sister Sukhibai have stated and asserted that the value of the HUF property added to the assessee's income belonged to the HUF. Statement of Smt. Sukhibai is also on record in the paper book. She has disclaimed her right title, and interest in the property of the HUF. She has also disclaimed the ownership. Even if Sukhibai would have claimed her one-half share in the HUF property remaining one-half share would not have gone to the assessee in his individual capacity as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e WT Act for the asst. yr. 1974-75 and 1975-76 are time barred. They are not relevant. Shri Deshpande has again relied upon the judgment of the Bombay High Court to contend that the issue of notice as well as change of opinion is against the spirit of the provisions of law. He has also contended that provisions of s. 14 of the Hindu Succession Act do not apply in the instant case, because there is a male issue to the deceased Gopikisan. He has advanced all those arguments by placing the evidence on record and pointing out the same from the paper book in support of his contention that the addition of the value of HUF property to the wealth of the assessee in his individual capacity is not correct as that wealth belongs to the assessee's HUF and the same is truly disclosed in the returns filed on behalf of the HUF. 11. As against the above narrated facts and arguments, the ld. departmental representative Shri A.P. Walvekar has proceeded to contend that the gold ornaments were not of the HUF. The nucleus of HUF is not established by the assessee. There is nothing on record that how much money was utilised in the money lending business and how much was utilised for the repayment to o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgment in Kantamani Venkata Narayana Sons vs. First Addl. ITO (1967) 63 ITR 638 (SC), Shri Walvekar has contended that it is not necessary for the WTO to give sub-section on the show cause notice for reopening the assessment. He has also relied upon the judgment of Supreme Court in Mehta Parikh Co. vs. CIT (1956) 30 ITR 181 (SC). By summing up his arguments, Shri Walvekar has urged to uphold the orders of the authorities below by contending that the reopening of the assessments and addition of wealth in the assessee's individual assessment is correct and it does not require to be interfered with. 14. Shri Deshpande in his reply has reiterated his earlier contentions and pointed out same facts from the paper book in support of his arguments. He has contended that the affidavits of the assessee and his sister Sukhibai are supported by the sale and his sister Sukhibai are supported by the sale deed. It will be too much to say that Smt. Sukhibai had not disclaimed her right, title and interest in the HUF property. According to him, there is no reason why the affidavit of Smt. Sukhibai should not be accepted and the authorities below have not given any reasons not to accept the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee's contention of being value of the property to be assessed in the status of HUF only and more so, when the returns in the status of HUF are filed. He has also reiterated that the same WTO heard both the cases of assessee individual and HUF, but he did not pass any order in the status of HUF. 17. We have gone through the orders of the WTO as well as AAC of Wealth Tax. The WTO has discussed everything in detail, but he has drawn adverse inferences from the facts on record. The AAC has not discussed anything at all regarding the facts on record and merely agreed with the view taken by the WTO. In a case of HUF property it becomes quite difficult for every one to prove every item of wealth that the same belongs to the HUF, though in fact most of the property is really held by the HUF. The assessee came to Pandharpur in 1969 and started his individual business. His mother died somewhere in 1974 at village Nagore in Rajasthan and she continued till her death with the HUF property of her husband. If the explanation is quite reasonable and convincing, then one should not hesitate to accept the same. By taking that view, we are satisfied to hold that the explanation given on beha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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