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Assistant Controller of Estate Vs. Krishna Bhartia - Court Judgment

LegalCrystal Citation
CourtIncome Tax Appellate Tribunal ITAT Allahabad
Decided On
Judge
Reported in(1984)10ITD736(All.)
AppellantAssistant Controller of Estate
RespondentKrishna Bhartia
Excerpt:
.....certain immovable properties as also investment in the firm of chunnilal nandlal. there was a partial partition in this family with respect to a sum of rs. 60,000 out of the investment in chunnilal nandlal. a deed of partial partition was also executed on 19-6-1974. the amount of rs. 60,000 was divided as under : rs. 40,000 jointly given to deceased and his wife. rs. 20,000 given to the deceased's son shri krishna bhartia.this deed also stated that the deceased and his wife would constitute a smaller huf and the amount of rs. 40,000 would be held by this huf.8. the above amount of rs. 40,000 together with the interest amounted to rs. 1,06,896 at the time of the death of the deceased. the assistant controller included the entire amount in the estate of the deceased on the ground that.....
Judgment:
1 to 6. [These paras are not reproduced here as they involve minor issues.] 7. The other contention in the departmental appeal relates to inclusion of only half of the amount of Rs. 1,06,896 in the estate of the deceased. We will first trace out the history of this amount. We have already stated above that the deceased had his own family consisting of himself, his wife and his son. This can be called smaller HUF. This smaller HUF possessed certain immovable properties as also investment in the firm of Chunnilal Nandlal. There was a partial partition in this family with respect to a sum of Rs. 60,000 out of the investment in Chunnilal Nandlal. A deed of partial partition was also executed on 19-6-1974. The amount of Rs. 60,000 was divided as under : Rs. 40,000 jointly given to deceased and his wife. Rs. 20,000 given to the deceased's son Shri Krishna Bhartia.

This deed also stated that the deceased and his wife would constitute a smaller HUF and the amount of Rs. 40,000 would be held by this HUF.8. The above amount of Rs. 40,000 together with the interest amounted to Rs. 1,06,896 at the time of the death of the deceased. The Assistant Controller included the entire amount in the estate of the deceased on the ground that the deceased being the sole surviving coparcener had powers of disposition over the entire joint family property and, therefore, the entire amount passed on his death. The Controller disagreed with this view and following a decision of the Jaipur Bench of the Tribunal held that only half of the amount could be included in the estate for the purpose of estate duty.

9. Here also the department is in appeal before us. The learned departmental representative submitted before us that the view taken by the Controller was in direct contravention of the opinion expressed by the Allahabad High Court in the case of CED v. Smt. Kalawati Devi [1980] 125 ITR 762. In this case Ram Swarup, whose family consisted of himself, his wife and daughter, received certain properties on the partition of a bigger HUF. On the death of Ram Swarup it was held that he was the absolute and exclusive owner of the property and the entire property passed on his death. This decision was followed by the Madhya Pradesh High Court in a Full Bench decision in Ramratan v. CED [1983] 142 ITR 863. It was, therefore, submitted by the learned departmental representative that since the HUF, who was the owner of the amount, consisted of only the deceased and his wife, the entire property over which the deceased had power of disposition passed on his death. On behalf of the accountable person, it was submitted that the above two decisions were distinguishable on the facts of the present case.

10. We have considered the submissions placed before us. We have already traced out the history of the amount in somewhat detail. It would be seen that the amount of Rs. 40,000 had subsequently swelled to Rs. 1,06,896. It was allotted jointly to the deceased and his wife, Smt. Sarbati Bhartia, by virtue of a partial partition in the family of the deceased or smaller HUF. The whole trouble arose because in that partial partition, the deceased and his wife together were described as a smaller HUF. In our opinion, that description was incorrect. There was the HUF of Nandlal Shri Krishna. There was a partial partition in this family with regard to the sum of Rs. 60,000 only. Rs. 20,000 was taken away by Shri Krishna Bhartia and Rs. 40,000 were taken away by the deceased and his wife jointly. The family, however, continued unpartitioned with regard to its members and other properties. In the circumstances it could not be said that the persons who had received the amounts on a partial partition also constituted any smaller HUF as was described in the deed-P.C. Balasanjanna v. Fourth GTO [1972] 86 ITR 748 (Mad.) (FB). We, therefore, hold that the deceased and his wife did not form any separate HUF outside joint Hindu family of Nandlal Shri Krishna. In the circumstances, the only conclusion possible is that the sum of Rs. 40,000 was held jointly by them. In the case of joint funds, there is a presumption that the persons held it in equal shares. The deceased, therefore, held only half of the amount of Rs. 1,06,896 and the remaining half belonged to his wife. Therefore, on his death only his share amounting to Rs. 53,448 passed and only this amount could legally be included for the purposes of the estate duty. We, therefore, agree with the finding of the Controller, though entirely for different reasons.

11 to 18. [These paras are not reproduced here as they involve minor issues.]


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