TMI Blog1976 (4) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... sons and daughters. The Wealth-tax Officer rejected their plea that on the death of Bireswar Chatterjee they held definite and determined shares in his properties and were liable to separate assessment, and assessed them as a Hindu undivided family for the assessment year 1958-59. On appeal, the Appellate Assistant Commissioner held that, since the assessee was governed by the Dayabhaga school of Hindu law, the properties could not belong to the Hindu undivided family and were to be taxed "in the hands of the co-sharers separately." The department took an appeal to the Income-tax Appellate Tribunal, "B" Bench, Calcutta. There was difference of opinion between the Members of the Tribunal, and in accordance with the opinion of the majority of the Members it was ordered that "notwithstanding that there was no unity of ownership amongst members governed by the Dayabhaga school of Hindu law in respect of the family property and each member thereof had indefinite shares in it, such property, until partitioned, was assessable to wealth-tax in the hands of the Hindu undivided family." The Tribunal, however, referred the following question of law to the Calcutta High Court for decision : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... harge of wealth-tax in these terms :-- " 3. Subject to the other provisions contained in this Act, there shall be charged for every assessment year commencing on and from the first day of April, 1957, a tax (hereinafter referred to as wealth-tax) in respect of the net wealth on the corresponding valuation date of every individual, Hindu undivided family and company at the rate or rates specified in the Schedule. " The liability to wealth-tax, therefore, arises in respect of the " net wealth " of the assessee, which expression has been defined as follows in section 2(m) : " (m) 'net wealth' means the amount by which the aggregate value computed in accordance with the provisions of this Act of all the assets wherever located, belonging to the assessee on the valuation date, including assets required to be included in his net wealth as on that date under this Act, is in excess of the aggregate value of all the debts owed by the assessee on the valuation date other than,......... " The expression "belong" has been defined as follows in the Oxford English Dictionary:--"To be the property or rightful possession of." So it is the property of a person, or that which is in hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e act of fixing diverse ownerships on particular parts of an aggregate of properties as in Mitakshara. The learned author has clarified the position in unmistakable terms as follows : " From what has been said above, it is evident that there is no unity of ownership in Bengal joint family, although there may be something like a unity of possession. " (emphasis added) This is why Mitakshara is designated as the school of "aggregate ownership", while Dayabhaga is known as the school of "fractional ownership". As has been stated in Golapchandra Sarkar Sastri's "Hindu Law" (eighth edition, page 465), while the joint family system prevails in Bengal, "there cannot be a real joint family consisting of father and sons during the father's lifetime inasmuch as joint property which is the essence of the conception of joint family, would be wanting to make them joint." This is why, according to the Bengal school, the sons become tenants-in-common and not joint-tenants in respect of the estate inherited by them from their father. The position of joint family under the Dayabhaga law has been stated as follows in Mayne's Treatise on Hindu Law and Usage (eleventh edition, page 364) : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Act, 1956, came into operation, he was succeeded by his widow and three sons, each inheriting one-fourth share in the estate. Gouri Shankar Bhar, one of the sons, took out letters of administration and filed a wealth-tax return in his capacity as administrator describing the status of the assessee as a Hindu undivided family. The Wealth-tax Officer also treated the status as such, and made the assessment. Gouri Shankar, however, filed an appeal and contended that the family being governed by the Dayabhaga school, the shares of the coparceners in the property of the deceased were definite and ascertained and the assessment should not have been made in their status as a Hindu undivided family and each member should have been assessed separately upon the value of his share in the inherited property. The Appellate Assistant Commissioner overruled the contention and took the view that even though the shares of the coparceners were definite and ascertained, the income from the property of the family did not belong to the several members in specified shares but continued to belong to the Hindu undivided family as a whole. On further appeal, the Tribunal held that as the coparcener under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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