TMI Blog2001 (6) TMI 25X X X X Extracts X X X X X X X X Extracts X X X X ..... of the assessee?" The facts giving rise to the reference, in a nutshell, are as under: Shri Chinubhai Motilal Shah who died intestate on February 20, 1965, was survived by his three daughters, four sons and a widow. After his death, one of his properties, a residential house situated at Panchvati, Ellisbridge, Ahmedabad, devolved upon his four sons. By executing a memorandum/deed dated March 27, 1973, the said property was given to the Hindu undivided families of the four sons. Though the said residential house was not partitioned by metes and bounds, as per the said memorandum, with effect from March 26, 1973, the Hindu undivided families of the four sons had acquired equal share in the said property. The four sons of the late Shr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ereinabove, Dilipbhai Chinubhai Shah--Hindu undivided family received a sum of Rs.75,000 in pursuance of the so-called "partition deed of the property" dated July 7, 1978. By virtue of the said deed, 1/4th share of the said property, which belonged to Shri Dilipbhai Chinubhai Shah-Hindu undivided family, was disposed of in favour of the Hindu undivided family of Shri Surendrabhai. The applicant-assessee--Shri Dilipbhai Chinubhai Shah--Hindu undivided family, filed its return for the assessment year 1979-80 wherein it was stated that its right in the property in question was relinquished by the assessee and the assessee had received a sum of Rs.75,000 by way of consideration from the Hindu undivided family of Shri Surendrabhai. An exempti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... K. Patel, appearing for the assessee, has submitted that looking to the provisions of section 47(ii), no transfer had been effected in respect of the property in question in pursuance of the deed dated July 7, 1978, which was captioned 'partition deed of the property". It has been submitted by him that as the property in question, namely, the residential building, was partitioned in pursuance of the deed dated July 7, 1978, the property was distributed among four different bodies of individuals, namely, four different families and, therefore, there was no transfer within the meaning of section 45 of the Act and therefore there was no income under the head "Capital gains". On the other hand, the learned advocate, Shri Akil Qureshi, appeari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the property to the Hindu undivided family of Shri Jitendrabhai Chinubhai Shah and a sum of Rs.75,000 was received by the assessee-Hindu undivided family from the Hindu undivided family of Jitendrabhai Chinubhai Shah. We have heard the learned advocates at length and have also perused the relevant portion of the deeds referred to hereinabove from the paper-book. Upon a perusal of the said deeds and looking to the conduct of the four 'families, it is very clear that the said property had been divided among four families under the memorandum dated March 27, 1973. It has been stated in the said memorandum that with effect from March 26, 1973, the property was partitioned, though not by metes and bounds, but the families of the four brother ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ividuals or association of persons, the assessee, who was the owner of 1/4th share of the said property, sold its share on July 7, 1978, and, therefore, the Revenue had rightly taxed the amount which was earned by the assessee by way of capital gains. Let us look at the issue from a different angle. It is the case of the assessee that there was an association of persons and the said association of persons was the owner of the property and on July 7, 1978, there was a dissolution of the said association of persons and the share in respect of each individual had devolved upon different individuals. Had it been so, 1/4th share of the said property would have devolved upon each brother or the Hindu undivided family of each brother. That is no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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