TMI Blog1997 (11) TMI 26X X X X Extracts X X X X X X X X Extracts X X X X ..... rty at Door No. 110, West Sandaipettai Street, Madurai, and it was a long-term capital gain. The assessee claimed exemption under section 54(1) of the Act. The Income-tax Officer disallowed the claim on the ground that the assessee was not entitled, to the relief as the assessee was assessed in the status of a Hindu undivided family. The Commissioner of Income-tax (Appeals), however, disagreed with the view taken by the Income-tax Officer and held that the relief would be applicable even in the case of a Hindu undivided family. The Revenue preferred an appeal before the Income-tax Appellate Tribunal and the Appellate Tribunal held that the assessee-family consisted of only a sole surviving coparcener and the assessee could have sold his property only as an individual, even though he was assessed in the status of a Hindu undivided family. The Appellate Tribunal, therefore, held that the decisions relied upon on behalf of the Department to the effect that the relief under section 54 of the Act would not be available to the Hindu undivided family are not applicable to the facts of the case, but the decision of this court in the case of M. S. P. Rajah v. CGT [1982] 134 ITR 1, and the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perty was sold by a sole surviving coparcener with all the powers available to him as an individual, the sole surviving coparcener sold the property only in his individual capacity. Therefore, he submitted that the decision of this court in the case of CIT v. Devarajulu (G.K.) [1991] 191 ITR 211, is distinguishable as in the instant case, the assessee sold the property only in his individual capacity and the conditions prescribed under section 54 of the Act are fulfilled and, therefore, the benefit of section 54 of the Act is available to the sale of a house property by a sole surviving coparcener. We have carefully considered the rival submissions of counsel for the respective parties. The question deals with the interpretation of section 54 of the Act, and the provisions of section 54 of the Act, in so far as it is material for the purpose of this case, read as under : "Where, a capital gain arises from the transfer of a capital asset to which the provisions of section 53 are not applicable, being buildings or lands appurtenant thereto the income of which is chargeable under the head 'Income from house property', which in the two years immediately preceding the date on which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aim of the other coparceners. The nature of the right of the sole surviving coparcener was the subject-matter of consideration by this court in the case of M. S. P. Rajah v. CGT [1982] 134 ITR 1, and this court held that a joint family may consist of a single member with his wife and where the joint Hindu family consisted of only one male member and the other members were females, the said male member is entitled to dispose of the property in the joint family properties as if they are his separate properties, and he may sell, mortgage or make, a gift of the properties. This court also held that when such member transfers the property, then, the transfer by him by virtue of all the powers vested in him for the disposal of the property is as an individual. The Bombay High Court in CIT v. Anil J. Chinai [1984] 148 ITR 3 also held that a sole surviving coparcener is entitled to dispose of a coparcenary property as if it were his separate property and the subsequently born son also cannot question or object to the alienation made by the father before he was born. This court in V. V. S. Natarajan v. CIT [1978] 111 ITR 539, has taken a view that there is no possibility of a partition of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ears all clearly contemplate that the assessee must enjoy the property as his own and he has the right of ownership in the property that was sold. When the sole surviving coparcener has all the rights of an individual owner in the matter of enjoyment and in the matter of user of the same property, we are of the opinion that the expression, "assessee' in section 54 of the Act should also be interpreted to include a "Hindu undivided family" with a sole surviving coparcener with female members having right of maintenance. We are of the view that when all conditions of section 54 of the Act are satisfied by a sole surviving coparcener to claim the deduction, it is neither desirable nor justifiable to deny the deduction to such a member. The comparison of the rights of an individual and those of a sole surviving coparcener would go to show that there is no difference at all between them in the matter of either ownership over the property or user of the property or in the matter of enjoyment of the property and when the rights are the same, in our view, the expression, "assessee" in section 54 of the Act should, if necessary, be interpreted to include a sole surviving coparcener also. By ..... X X X X Extracts X X X X X X X X Extracts X X X X
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