SMT. RAMPYARIBAI v. WEALTH-TAX OFFICER
[Citation -1986-LL-0718-1]

Citation 1986-LL-0718-1
Appellant Name SMT. RAMPYARIBAI
Respondent Name WEALTH-TAX OFFICER
Court ITAT
Relevant Act Wealth-tax
Date of Order 18/07/1986
Assessment Year 1979-80
Judgment View Judgment
Keyword Tags individual property • partial partition • value of share • minor child • net wealth
Bot Summary: The question, we are required to decide is whether the value of shares given and allotted to five major sons on partition of the converted property is also to be assessed in the hands of the assessee. The converted property or any part thereof shall be deemed to be assets belonging to the individual and not to the family; where the converted property has been the subject matter of a partition whether partial or total) amongst the family, the converted property or any part thereof which is received by the spouse or minor child of the individual on such partition shall be deemed to be assets transferred indirectly by individual to the spouse or minor child and the provisions of sub-s. shall, so far as may be, apply accordingly; Provided that the property referred to in cl. Cl. is to apply to a situation where the converted property has been partitioned amongst the members of the family and the whole or any part thereof has been received by the spouse or minor child of the individual on partition. There is no difficulty in further holding that after partition only the value of such converted property or part thereof received by the spouse or minor child of the individual can be assessed in the hands of the individual and the share if any allotted to members other than spouse or minor, child cannot be included while assessing the wealth of the individual. We are of the considered opinion that on fair reading of the above provision, the share allotted on the partition of the converted property to the major sons of the individual cannot be included while assessing the wealth of the individual under s. 4(1A) of the WT Act. Under the general law, property allotted and given to the major sons on partition is their property and we see no departure from the above rule in the above cited provision. For the above reasons, we hold that the WTO was in error in including the value of the entire property including the shares allotted to the major sons on partition of the property.


VIMAL GANDHI, J.M.: This is appeal by assessee against order dt. 23rd Nov., 1984 passed by AAC. issue involved in this appeal is whether even after partition, value of entire house in hands of appellant without excluding value of share given to major sons of assessee on partition of HUF under s. 4(1A) of WT Act. Facts in brief are that assessee by means of declaration dt. 23rd May, 1974 threw house, in question, into common hotch-potch of family. Partition of HUF was effected on 15th Aug., 1975, and different shares of house, in question, were allotted to assessee, his wife and 5 major sons as recorded in memorandum of partition dt. 30th Sept., 1975. above partition was duly accepted by Revenue vide order dt. 12th Nov., 1976 passed under s. 171 of IT Act. In asst. yr. 1976- 77 and some other assessment years claim of assessee that only value of share falling to assessee and her wife were assessable under s. 4(1A) of WT Act was accepted by Revenue in assessment orders. However, in assessment completed for asst. yr. 1979-80 under s. 16(5) of WT Act, value of entire house has been assessed in hands of appellant and above action has been upheld by AAC. Hence, this appeal by assessee. We have heard parties and examined paper book comprising of 21 pages filed by assessee and have also referred to pages 460-461 of Commentary by Shri A.C. Sampath Iyenger, Three New Taxes, Sixth Edition, Vol. I. We agree with AAC that simply because value of share of house belonging to major sons was not added by WTO, mistake, if any, could be rectified in subsequent years by correctly applying provisions of s. 4(1A) of WT Act. However, AAC has not given any reasons for adding value of entire house, including value of shares allotted to major sons on partition of house. It is admitted position that house is "converted property" and assessee himself added value of share of house given to assessee and his wife under s. 4(1A) of WT Act. It is also admitted position that above converted property was partitioned on 15th Aug., 1975 and certain shares of house were allotted and given to 5 major sons as recorded in memorandum of partition dt. 30th Sept., 1975. Thus, provisions of s. 4(1A) are admittedly attracted in this case. question, we are required to decide is whether value of shares given and allotted to five major sons on partition of converted property is also to be assessed in hands of assessee. It will be convenient and useful at this stage to reproduce clauses which were applicable after its amendment by Taxation Laws (Amendment) Act, 1975 w.e.f. 1st April, 1976 to "converted property" for computing wealth of assessee throwing his individual property in common stock of family after 31st Dec., 1969: "(a) individual shall be deemed to have transferred converted property, through family, to members of family, for being held by them jointly. (b) converted property or any part thereof shall be deemed to be assets belonging to individual and not to family; (c) where converted property has been subject matter of partition whether partial or total) amongst family, converted property or any part thereof which is received by spouse or minor child of individual on such partition shall be deemed to be assets transferred indirectly by individual to spouse or minor child and provisions of sub-s. (1) shall, so far as may be, apply accordingly; Provided that property referred to in cl. (b) or cl. (c) shall on being included in net wealth of individual, be excluded from net wealth of family or, as case may be, spouse or minor child of individual." On fair reading of above provision, it is clear that under cl. (a) converted property is deemed to be transferred to members of family through family: under cl. (b) converted property is deemed to be asset belonging to individual and not to family. Determination of interest of individual in converted property as was required to be done under above provision has been done away w.e.f. 1st April, 1976. Thus, value of entire property is to be added in hands of individual "converting" property. Cl. (c) is to apply to situation where converted property has been partitioned amongst members of family and whole or any part thereof has been received by spouse or minor child of individual on partition. Revenue before us claimed that as per cl. (b) converted property or any part thereof for all times to come has to be treated as belonging to individual and, therefore, even after partition, value of entire property is to be assessed in hands of individual only. There is no warrant to accept this proposition. To accept above proposition would mean closing your eyes to cl. (c) which specifically deals with situation after converted property has been subjected to total or partial partition amongst members of family. We cannot place interpretation which would leave above cl. (c) redundant and meaningless. two cls. I.e. (b) and (c) operate in different situations. cl. (b) operates so long property is held by family and cl. (c) operates after property has been partitioned amongst members of family. two clauses are separated by semi-colon and, therefore, are required to be read dis-junctibly. above view is also supported on consideration of proviso to sub-section stating that when once property referred to in cl. (b) or (c) is included in net wealth of individual, it is to be excluded from net wealth of family or spouse or minor child. Thus, after partition of converted property, only cl. (c) is to be applied. Having held so, there is no difficulty in further holding that after partition only value of such converted property or part thereof received by spouse or minor child of individual (there being no dispute regarding share, if any, allotted to individual) can be assessed in hands of individual and share if any allotted to members other than spouse or minor, child cannot be included while assessing wealth of individual. above interpretation is also in line with spirit of provisions of sub-s. (1) of s. 4 of W T Act, which discourages transfer of assets to spouse or minor child or sons wife or sons minor children but not to major children. There is no provision in WT Act or for that matter in IT Act discouraging transfer of assets to major sons or major children. We are, therefore, of considered opinion that on fair reading of above provision, share allotted on partition of converted property to major sons of individual cannot be included while assessing wealth of individual under s. 4(1A) of WT Act. Under general law, property allotted and given to major sons on partition is their property and we see no departure from above rule in above cited provision. For above reasons, we hold that WTO was in error in including value of entire property including shares allotted to major sons on partition of property. We, accordingly, direct WTO to recompute wealth of assessee adding only value of share allotted to assessee and his spouse and exclude value of shares allotted to major sons on partition. In result, appeal of assessee is allowed. *** SMT. RAMPYARIBAI v. WEALTH-TAX OFFICER
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