TMI Blog2004 (11) TMI 502X X X X Extracts X X X X X X X X Extracts X X X X ..... ial assessments made in the status of HUF as the partition of HUF property was not recognized and accordingly income from said property was taxed in the status of HUF. WTA Nos. 201 to 206/Bang./02 are against assessments in the status of HUF consequent to refusal to recognize partition of the HUF property and hence the properties were charged to wealth-tax in the status of HUF. 2. The assessee for the first time claimed total partition of HUF property during financial year relevant to assessment year 1987-88 when he filed the return on 11-9-1989. It was claimed that there was a total partition of family on 8-1-1987 vide memorandum executed on 20-1-1987. Originally the Assessing Officer by order dated 15-11-1990 refused the recognition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owner of this site measuring 100' 70' which is sold. This is in the name of Sri P.G. Srinivasa Setty Sons. It is surprising to note that a statement has been made before the Notary, which has been notarised and confirmed that Sri P.G. Srinivasa Setty is the karta of the family, after one year from the date of partition. The purchasers of the plot have made all the payments by way of cheque drawn in favour of Sri P.G. Srinivasa Setty. These evidences clearly established that there was not a genuine partition and hence the claim of the assessee for total partition of the family is rejected and it is recorded that H.U.F. continues to be so." Learned CIT(A) confirmed the same and hence this appeal. 3. Learned counsel for assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of witness extracted herein below : "To The Income Tax Officer, Ward One, Tumkur. Sir, Sub : Summoning to give evidence The attestation of the documents called memorandum of partition was in the individual capacity and not as Notary Public. Yours faithfully, SD/-xx (B. Nanjundappa)" 3.1 Shri Venkatesan further submitted that though at the time of applying for Certificate under section 230A no mention was made regarding the partition. The circumstances under which no mention was made regarding partition was explained which is extracted herein : "In response to your question as to how the affidavit in support of the 230A application came to be drawn and attested in the name of the HUF of Sr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s proposition he relied upon the decision of Hon ble Allahabad High Court in Sheo Narain Duli Chand v. CIT [1969] 72 ITR 766. He also submitted that the sale proceeds of the property were received by the firm and shown in the books of firm. The said firm has credited the amount received in the account of individual member of the erstwhile HUF. Thus the finding of Assessing Officer is not correct to the extent that the amount is not credited to the account of individual member. He also submitted that when the site is so small to divide into equal share, it will be a sufficient compliance if everyone is allocated equal share in the total property. This will amount to distribution of assets by metes and bounds as the site is small enough t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other members of HUF as holding power of attorney. The sale deed was executed in terms of agreement to sale dated 19-5-1987. The Assessing Officer directed the assessee to file copy of Sale Agreement. However, the assessee has neither filed the same before Assessing Officer nor CIT(A). Non-filing of such document can lead the Assessing Officer to draw an adverse inference against the assessee. The Certificate from the Chartered Accountant dated 7-6-1993 was never filed before the Assessing Officer since the order was passed by Assessing Officer on 18-3-1992. Similarly, all other persons who have stated regarding partition of property were never made available to the Assessing Officer till the Assessing Officer passed the order. The Assessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... till the date of execution of final sale deed on 1-3-1988 never mentioned about partition of the property amongst to various members. The Karta has signed sale deed as Karta of HUF for himself and as a Power of Attorney holder for other members. The sale deed is executed in terms of agreement to sale entered into on 19-5-1987. Neither the copy of Power of Attorney nor the copy of agreement to sale has been filed before us. The Assessing Officer specifically asked for the copy of such agreement to sale as noted by him on page 4 of his order. Thus it can be concluded that the Assessing Officer was justified in drawing adverse inference against the assessee. The Memorandum of partition dated 20-1-1987 is not notarised. If the Memorandum was a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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