9911796707
TMI Blog1984 (6) TMI 102X X X X Extracts X X X X X X X X Extracts X X X X ..... place. Beni Parshad, with whom we are concerned, as a consequence of the said family settlement, get a plot in the Transport Area, Chandigarh another plot at Ropar, beside other properties which are not very relevant for the dispute under consideration. Beni Parshad was Karta of his smaller HUF consisting of himself, his wife Bimla Devi and son Navin Kumar, who was born on 6th March, 1961. Beni Prashad died on 30th Oct., 1972 and arbitration award was made a rule of the Court by Court decree passed on 14th March, 1973. Beni Parshad, beside his widow Bimla Devi and son Navin Kumar, was survived by three daughters, Renu, Madhu and Suman. The third being youngest was Suman, who was only unmarried daughter at the time of his death. As per contention of the assessee, Beni Prasad at the time of his death was concerned for making a provision for marriage of his third daughter Suman. It was again the contention of the assessee that on 15th Dec., 1972, Bimla Devi widow of Beni Parshad to fulfil the last wish of her husband and her brother-in-law Kishori Lal and his son Brij Bhushan Singal entered into an agreement for provision of marriage of Suman and as per the said agreement it was exec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed the appeals terming the same as infructuous. 5. It is this action of the AAC for the two years under consideration vide his consolidated order in different appeals in the cases of Bimla Devi, Manager of Beni Parshad HUF and Navin Kumar, which also covered subsequent two years in which contentions of the assessee were also rejected which left the assessee aggrieved and both Bimla Devi and her son Navin Kumar have come in appeals before the Tribunal. Since the entire background is common, these appeals and also the appeals of subsequent two years at the instance of both the appellants were heard together and submissions from both the parties were one and the same. The ld. counsel for the assessee Mr. D.S. Gupta, at the time of hearing before us, has also come forward for admission of an affidavit from Navin Kumar regarding his age accompanied by his certificate from the Council for the Indian School Certificate Examinations, New Delhi, as per which he was born on 6th March, 1961, and, as such, had become major on 6th March, 1979. 6. The ld. Senior departmental representative Mr. R.K. Bali objected to the admission of the same and he relied on the case of Velji Deoraj & Co. vs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeals filed by Navin Kumar, he submitted that 'any person' as contemplated under ss. 246 to 249 of the IT Act, who was undoubtedly connected with the assessments under appeal, could not be excluded and for that he relied on the case of CIT vs. Ambala Flour Mills (1970) 78 ITR 256 (SC). In these appeals again on initiation of proceedings, he almost repeated his arguments. In the end, he addressed us on the merits. According to him two plots in question were kept as a provision for the marriage of Suman and in that regard he took us through the agreement, photostat copy of which was placed by him on the assessee's compilation and also copies of 'Kumari Suman Marriage Trust Money Account' in M/s Capital Rice and General Mills, which indicated that the entire sale proceeds of the two plots were either utilised for marriage of Suman or were given to her in cash by converting the same into Fixed Deposit Receipts. He even challenged the valuation of the two plots in question, as same were taken on lower figures in E.D. case of Beni Parshad deceased. 8. The ld. departmental representative on the other hand, first of all challenged the admission of proof regarding age of Navin Kumar an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we are neither in a position to uphold the finding of the AAC in respect of jurisdiction nor on merit. His action is, therefore, reversed and the contentions raised by the assessees in these appeals are accepted. Before we come out with reasons for our finding regarding annulment of the said reassessments, it will be pertinent to meet the arguments of the ld. departmental representative regarding admission of additional evidence in the form of affidavit from Navin Kumar and his school certificate regarding date of birth. In this regard, only case relied upon by the ld. departmental representative was that of Velji Deoraj & Co. When we go through the said decision, we are afraid, it supports the contention of the assessees instead that of the Revenue. In that case, their Lordships while dealing with the issue of additional evidence before the Tribunal and regarding powers of the Tribunal to admit additional evidence, at pp. 713-714 of the report observed as under: "Now, the power of the Tribunal to admit additional evidence in appeal is governed by r. 29 of the rules and orders relating to the Tribunal. That rule is similar in terms to Order 41, r. 27 of the Civil Procedure Code. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d important but because it is only for the substantial cause. The main issue for consideration is whether Bimla Devi could be the Manager of Beni Parshad HUF, after death of Beni Parshad and on attainment of age of majority by her only son Navin Kumar. This is apparently the substantial cause. The other objection which was raised by the ld. departmental representative was in respect of challenge of jurisdiction before the Tribunal and in that connection he had relied on the Punjab High Court decision in the case of T.N. Swami & Co. The submission of the ld. departmental representative was that the issue pertaining to jurisdiction could not be raised or challenged before the Tribunal when it was not so raised before the WTO. In the said case, facts were quite different. In that case, validity of proceeding under s. 34 of the Indian IT Act, 1922, were either challenged before the ITO nor before the AAC in the first appeal. Then their Lordships observed that under such circumstances it could not be urged in appeal before the Tribunal under s. 33 of the old Act that action under s. 34 was not validly taken. In the instant case, the action as challenged by the assessees in first appeals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h of Nand Lal, a new partnership was entered into between the representatives of the two branches of the families i.e. Nand Lal's and Bachhu Lal's. Before we consider this question, it is as well that we advert to incidental questions of law that were raised. One is whether the widow of Nandlal could under Hindu law be a Karta of the joint Hindu family consisting of three widows and two minors. There is conflict of view on this question. The Nagpur High Court held that a widow could be a Karta. See CIT vs. Seth Laxmi Narayana Raghunathdas (1948) 16 ITR 313, Pandurang Dahake vs. Pandurang Gorle ILR (1947) Nag 299. The Calcutta High Court expressed the view that where the male members are minors and their natural guardian is the mother, the mother can represent the Hindu undivided family for the purpose of assessment and recovery of taxes under the IT Act. See Sushila Devi Rampuria vs. ITO (1960) 38 ITR 316, and Smt. Champa Kumari Singhi. The said two decisions did not recognise the widow as a Karta of the family, but treated her as the guardian of the minors for the purpose of Income tax assessment. The said decisions, therefore, do not touch the question now raised. The Madras and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstant case, the assessments in question could not be validated by mere fact that the returns were signed and filed by Bimla Devi. As a matter of fact, in the instant case, Bimla Devi is no one on the point of time when proceedings were initiated and the returns filed by her first could not tantamount to an admission that the HUF was liable to reassessments nor this action of her could undo the damage regarding initiation of proceedings as there could never be a waiver of mandatory provision for the simple reason that in such cases jurisdiction could not be conferred on the authority by mere consent but only on conditions precedent for the exercise of jurisdiction being fulfilled, as also held in the case of P.V. Doshi vs. CIT (1978) 113 ITR 22 (Guj). It has been held in the same case that, if jurisdiction cannot be conferred by consent there could be no question of waiver, acquiescence or res judicata a being attracted because the order in such cases lack estoppel or the bar of inherent jurisdiction and would be a void order or a nullity. Here, we may deal with the contentions of the ld. departmental representative that name of Beni Parshad was only superficial and this superficia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Navin Kumar and his mother, which is effected Karta of which is Navin Kumar. He as such could come in appeal. Under the old Act, when 'any person' came to be interpreted by the Supreme Court in the case of CIT vs. Ambala Flour Mills, it was held by their Lordships that expression 'any person' means a person intimately connected with the assessments under appeal. Right or wrong, reassessment proceedings had been raised in the instant case on the HUF of Navin Kumar and, therefore, he being the Karta was competent to prefer an appeal on behalf of his HUF both before the AAC and the Tribunal. He is not 'any person' but he is the person concerned. In his appeals Navin Kumar contended that neither proceedings were initiated against him nor assessments were framed on the said HUF on the basis of returns filed by him. There being no controversy about the said facts, even as per contentions raised by Navin Kumar, appeals filed by him are more valid, then any one else. For lack of inherent jurisdiction, reassessments could not stand. 13. Coming to the merit, the learned counsel for the assessee had submitted that though the desire of late Beni Parshad was oral for provision of marriage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er subjected to Gift tax or there was no partition order, question of gift tax would not arise because it was a provision for daughter's marriage from HUF funds and regarding claim of partition there might have been a miss because after the death of Beni Parshad, only Bimla Devi and then major Navin Kumar survived the deceased. All this, as a matter of fact, is academic because we have annulled the reassessments but we have given the finding as per submissions and request of the learned counsel for the assessee in this regard which also goes in favour of the assessee. 14. In respect of valuation of the two plots, he had submitted that the values were enhanced from what they were taken at in estate duty matters and for that he had relied on a Jaipur Bench decision where it was held that whatever value was taken in wealth tax should be taken in estate duty. Even on this issue, we have to be with the learned counsel for the assessee for these two years because whatever was taken to be values of the plots in estate duty, should have been taken here as dates are in proximity so far first year is concerned and the same is to be repeated for subsequent years but this again is academic a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
