TaxTMI 
TaxTMI 
1989 (2) TMI 425
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.... dispute relates to the income of the assessee from his interest in house at 74, Ashutosh Mukerjee Road, Calcutta. The property originally belonged to Mrs. Lilabati Basu. After her death on 3rd September, 1966, the same devolved on her three sons including the assessee. The claim of the assessee was that the income from the property should be assessed in the hands of the family the ITO rejected the claim on the ground that under the Dayabhaga School of Hindu Law, which was admittedly applicable to the assessee and his family, the assessee is deemed to be a co-owner having a definite interest therein. On appeal before the CIT(A), the assessee gave further details in regard to the ownership of the said property and its devaluation upon him. The CIT (A) accepted the facts stated in the statement given to him on the ground that similar statement had been furnished to the ITO and he came to the conclusion that the property belonged to the HUF and should not be assessed in the individual hands of the assessee, by treating him as co-owner thereof. 3. The Revenue went up on appeal before the Tribunal. The Tribunal held that the question for consideration was whether in respect of a Daya....
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....sed in respect of a house property since there is no physical division of the property though the shares are ascertained. Mr. Poddar also pointed out that the above aspect has not been argued in the earlier cases. Mr. Poddar also urged that s. 26 of the IT Act, can have no application to the case of co-shares of a Hindu family governed by Dayabhaga Law. 5. After the judgment of the Tribunal, the assessee made an application for rectification of the order passed by the tribunal on the ground that the point at controversy had been brought to an end by a judgment of the Calcutta High Court in the case of CIT vs . P. N. Talukdar [1982] 135 ITR 628 (Cal). The Tribunal allowed the rectification application and held that the property which was the subject-matter of dispute belonged to he joint family of the assessee and his brother and therefore, the income thereof could not be assessed in his individual assessment. 6. The controversy is whether, there was a rectifiable error under s. 254(2) of the IT Act. Sec. 254(2) provides that the Appellate Tribunal may at any time within four years from the date of the order, with a view to rectifying any mistake apparent from the record amend....
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....qual shares. The question that fell for consideration was whether the income of the house property belonging to the joint family property should be assessed as joint family property in the hands of HUF or individually in the hands of widow and the son. It was held in that case : By reason of the Hindu Succession Act, s. 14, the limited interest which she got under the Act of 1937, was converted into that of a full owner. But for the Income Tax purposes we have got to see whether her share and that of her son, who were the owners of the properties left by J. K. Rudra could only be assessed in their hands under s. 9(1) read with s. 9(3) which could not be treated as income belonging to a joint family even if there was no burden between the widow and her son. 10. We were also referred another decision Biswa Ranjan Sarvadhikary vs . ITO [1963] 47 ITR 927 (Cal). There it was held that where a widow and a son governed by the Daya Bhaga School of Hindu Law had defined shares in the properties they could not be assessed in the status either of an association of persons or of an HUF. The tax had to be assessed separately on the individuals on the basis of their respective shares of th....
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....preme Court held that since the heirs of the deceased took the pridamperty in separate shares, then in law each one of them was liable to pay wealth-tax as individual on the share that devolved on him. 13. In the case of CWT vs. Bishwanath Chatterjee & Others (supra) the Supreme Court observed as follows :- In the case before us, it is not in dispute that the property in question was the individual property of Bireswar Chatterjee and that it devolved on his heirs according to the provisions of the Hindu Succession Act, 1956. It will be recalled that a suit for partition was filed on 21st June, 1957, and a preliminary decree was passed on 4th July, 1959. For reasons already stated, the coparcenary had unity of possession but not unity of ownership on the property. Each coparcener, therefore, took a defined share in the property the coparcener. It was his net wealth within the meaning of s. 2(m) of the Act and was liable to wealth-tax as such under s. 3. 14. Mr. Poddar has strongly relied on two judgments - One of this Court and the other is of the Supreme Court. In the case of CIT vs. P. N. Talukdar (supra) a Division Bench of this Court took the view that under the Hindu l....