{"id":126072,"date":"1991-09-05T00:00:00","date_gmt":"1991-09-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/income-tax-officer-vs-a-y-nithyanandam-on-5-september-1991"},"modified":"2017-11-07T00:21:36","modified_gmt":"2017-11-06T18:51:36","slug":"income-tax-officer-vs-a-y-nithyanandam-on-5-september-1991","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/income-tax-officer-vs-a-y-nithyanandam-on-5-september-1991","title":{"rendered":"Income-Tax Officer vs A.Y. Nithyanandam on 5 September, 1991"},"content":{"rendered":"
Income Tax Appellate Tribunal – Madras<\/div>\n
Income-Tax Officer vs A.Y. Nithyanandam on 5 September, 1991<\/div>\n
Equivalent citations: 1992 41 ITD 49 Mad<\/div>\n
Bench: T R Rao, S Kannan<\/div>\n<\/p>\n
<\/pre>\n
ORDER<\/p>\n
 S. Kannan, Accountant Member <\/p>\n
1. These four departmental appeals are centered on a common issue. They were, therefore, heard together and are disposed of by a common order.\n<\/p>\n
2. The assessee is an individual. The assessment for the assessment year 1976-77 was initially completed on 30-12-1977, bringing to charge (i) income from house property situate at No. 266, Indira Nagar, Madras; (ii) income from petrol pump and service station, and (iii) dividend income. Subsequently, the Assessing Officer found that the assessee had purchased a plot of land admeasuring slightly over three grounds and situate at No. 1, Padmanabha Nagar, Madras; that he had constructed during the period 1972 to 1975 a building thereon; and that the assessee had omitted to disclose both the investment in the building and the rental income therefrom. He, therefore, initiated reassessment proceedings. The assessee responded by filing a return of income, disclosing the income which was assessed in the original assessment completed on 30-12-1977.\n<\/p>\n
3. As respects the investment in and income from the Padmanabha Nagar property, the assessee’s case was that it belonged to the HUF of which he was the karta. In this regard, the following points were made on behalf of the assessee:-\n<\/p>\n
(i) As far back as on 27-2-1936 (when the assessee was about 21\/2 years old) certain lands were purchased at Hospet in the joint names of himself and his father for a sum of Rs. 1,875, the source of the investment being the funds of the joint family of which the assessee’s grandfather was the karta.\n<\/p>\n
(ii) The said Hospet land was sold in August 1972 for a sum of Rs. 80,000. The said sale consideration was paid by the purchaser in instalments starting from November 1970.\n<\/p>\n
(iii) The said sale consideration of Rs. 80,000 was utilised in purchasing other properties including the site at No. 1, Padmanabha Nagar, Madras for a sum of Rs. 40,000. The said plot was purchased on 29-1-1972.\n<\/p>\n
(iv) An aggregate sum of Rs. 4,35,390 (inclusive of the cost of the site) was spent on constructing the building. The excess of the aggregate cost of construction over the moneys invested out of the sale proceeds of Hospet land was met out of loans from banks (Rs. 3,06,075), rent received in advance from the tenants (Rs. 34,901), and the rent actually collected from the tenants who had occupied the building when it was under various stages of completion (Rs. 1,17,895). According to the assessee, the investment having flowed from joint family nucleus namely, Hospet land, and the loans and advances having been taken by the assessee in his representative capacity as the karta of the HUF, neither the investment in the building nor the income therefrom can be considered in his hands.\n<\/p>\n
(v) Just as Hospet land was purchased jointly in the name of the assessee and his father, so similar purchases were made in the name of the two brothers of the assessee, namely A. Y. Prabhakarand A.Y. Radhakrishnan. In this regard, reliance was placed on the joint declarations dated 10-10-1969 made by the brothers in matters relating to the joint family properties which fell to their share. Reliance was also placed on the affidavit dated 13-12-1979 filed by Sri Prabhakar to the same effect in the course of his own assessment proceedings.\n<\/p>\n
(vi) The assessee also filed an affidavit dated 22-2-1970 to the same effect. In this regard, an alternative contention that was taken was that the said document should be taken as evidence of the assessee’s having thrown his individual property (assuming, of course, that the HUF property was his individual property) in the common hotchpot of the joint family.\n<\/p>\n
(vii) Reliance was also placed on the partition deed dated 11-4-1975 wherein the Padmanabha Nagar property was partitioned among the assessee and his four daughters.\n<\/p>\n
4. In view of the foregoing, therefore, it was contended before the ITO that the Padmanabha Nagar property belonged to the HUF and not to the assessee in his individual capacity.\n<\/p>\n
5. None of the aforesaid arguments found favour with the ITO. In this regard, the ITO was impelled by the following considerations:-\n<\/p>\n
(i) The sale deed dated 27-2-1936 relating to Hospet property does not indicate that it was the intention that the assessee and the members of his family must be benefited therefrom. It was just a case of purchase in the joint names of the assessee and his father.\n<\/p>\n
(ii) There was no proof that the land in question was purchased by the assessee’s grand father. Even if it is assumed that the land was so purchased, that fact will not ipso facto lead to the conclusion that the land was purchased for the benefit of the assessee and his family.\n<\/p>\n
(iii) If it is assumed that the assessee’s father purchased the said property, the position will not improve, because there is no evidence to show that the land was purchased for the benefit of the assessee and his family.\n<\/p>\n
(iv) As respects the source of investment in the Hospet land, the assessee was taking “contradictory stand”. Thus whereas in his letter dated 1-12-1978 he stated that the land was purchased by his father, in the affidavit dated 22-2-1970 he has stated that it was purchased by his grandfather.\n<\/p>\n
(v) The assessee’s father, Sri Yathiraj Mudaliar, died on 3-6-1968 and the Hospet property was not disclosed in the estate duty return filed by the accountable persons. This will show that the Hospet land was purchased for the individual benefit of the assessee.\n<\/p>\n
(vi) The joint declaration dated 10-10-1969 of the assessee and his brothers does not establish that the land belonged to the HUF of which the assessee is karta.\n<\/p>\n
(vii) The said joint declaration, inter alia, shows that certain shares in Indian Sugars & Refineries Ltd. came to be allotted to the HUF of which the assessee is karta. But the dividend income from the said shares had all along been disclosed by the assessee in his individual returns.\n<\/p>\n
(viii) The assessee’s affidavit dated 22-2-1970 cannot be treated as evidence of the Hospet property belonging to the joint family of which the assessee is the karta. Nor can it be taken as evidencing the throwing into the common hotchpot of the family by the assessee the Hospet property.\n<\/p>\n
(ix) The partition deed dated 11-4-1975 cannot avail the assessee. For a fact, even if the Hospet property were to be treated as that of the family, the partition effected by the said deed cannot be treated as a partition, because the assessee’s minor daughters had only a right of maintenance. Properly viewed, the said document dated 11-4-1975 evidences gifts made by the assessee to his minor daughters – gifts which are exigible to tax under the Gift-tax Act.\n<\/p>\n
(x) That, the assessee had inter-mingled his individual funds with that of the joint family is evidenced by the fact that on 30-6-1975 the assessee had transferred a sum of Rs. 25,000 from HUF account to his individual account.\n<\/p>\n
(xi) The Hospet property was sold by the assessee on 28-8-1972. One of the recitals in the said deed makes it clear that the assessee was the full owner of the land. There is no mention in the said deed that the property belongs to the HUF.\n<\/p>\n
6. In view of the foregoing, therefore, the ITO held that the Padmanabha Nagar property belonged to the assessee in his individual capacity and that, consequently, the income therefrom must be assessed in the individual hands of the assessee.\n<\/p>\n
7. The ITO then directed his attention to the investments made by the assessee in the said property. In the books of account an aggregate investment of Rs. 4,35,390 had been booked. The District Valuation Officer had valued the property at Rs. 6,03,900. The property had also been valued as on 5-6-1978 by a registered Valuer in the context of the loan that Nithyanandam took from the Indian Bank, Madras. The value of the property on that date was fixed at Rs. 7,58,000. Takingthese aspects into account, the ITO held that the actual investment in the property could reasonably be taken at Rs. 6,03,900. Deducting therefrom a sum of Rs. 8,330, being the sum expended by the tenants on certain amenities, the ITO arrived at the total investment at Rs. 5,95,570. Since a sum of Rs. 4,35,390 had been booked in the accounts, the ITO treated the difference of Rs. 1,60,180 as assessee’s unexplained income under the head ‘Other sources’.\n<\/p>\n
8. Thereupon, the assessee moved the first appellate authority, who allowed the assessee’s claim that the property belonged to the HUF of which Nithyanandam was the karta. In this regard the CIT(Appeals) was impelled by the following considerations:-\n<\/p>\n
(i) The Hospet property which was purchased in 1936 was purchased out of the funds of the larger HUF. Thus this property constitutes the ancestral nucleus.\n<\/p>\n
(ii) The Hospet property was sold and the sale proceeds utilised for acquiring the plot at Padmanabha Nagar and making a construction thereon.\n<\/p>\n
(iii) The joint declaration dated 10-10-1.969 of the three brothers supports the contention of the assessee that the Hospet property was ancestral property in the hands of the assessee.\n<\/p>\n
(iv) In the case of the other two brothers, in identical circumstances, the Department has accepted their contention that their status was HUF as respects the ancestral property that fell to their share and other properties that were purchased out of the ancestral properties.\n<\/p>\n
9. For the other three assessment years also the ITO followed the assessment for the assessment year 1976-77. On his part, the CIT(Appeals) allowed the assessee’s claim on this issue for these three assessment years also.\n<\/p>\n
10. It is in these circumstances that the Department is now before us.\n<\/p>\n
11. Shri K.L. Tilakchand, the learned Departmental Representative, strongly supported the view taken by the Assessing Officer. He first contended that there is no proof that the Hospet property was purchased out of joint family funds. All that could be said about the deed of conveyance dated 27-2-1936 is that the property was purchased in the joint names of the assessee and his father. The purchase thus effected cannot invest the property with the characteristic of joint family property. In this regard, he referred to and relied upon the Madras High Court case of CIT v. L. Balasubramaniam [1985] 153 ITR 696.\n<\/p>\n
12. Secondly, the joint declaration dated 10-10-1969 need not be given any credence. Thirdly, the failure on the part of the accountable person(s) to include the Hospet property in the Estate Duty return of the estate relating to the late Yathiraj Mudaliar (assessee’s father) would go to show that the Hospet property was not treated as that of the HUF. Fourthly, not only the agreement dated 19-2-1973 which the assessee had entered into with the Indian Bank in connection with the loan obtained by him from the Bank, but also the rental agreement dated 21-1-1975 contain a clear recital to the effect that the assessee stood absolutely possessed of the Padmanabha Nagar property. Fifthly, the partition deed dated 11-4-1975 could not be effective because the assessee was sole surviving coparcener, his only son having died sometime in 1972.\n<\/p>\n
13. Finally, drawing our attention to the assessment order dated 31-3-1979 for the assessment year 1970-71 in the case of Prabhakar, one of the brothers of the assessee, Shri Tilakchand contended that there was another declaration dated 19-10-1969, which was not produced before us. It may, however, be pointed out that Shri Tilakchand was not able to produce a copy of the said declaration. Further, when it was pointed out that the date 19-10-1969 was obviously a typographical error for 10-10-1969, Shri Tilakchand did not pursue this line of argument.\n<\/p>\n
14. In view of the foregoing, therefore, contended Shri Tilakchand, the department is entitled to succeed.\n<\/p>\n
15. Shri P. Srinivasan, the learned counsel for the assessee, strongly supported the impugned orders of the first appellate authority. He first contended that the existence of joint family nucleus has been proved. It should, therefore, follow that the property in question belongs to the HUF of which Nithyanahdam is the karta.\n<\/p>\n
16. Secondly, the joint declaration dated 10-10-11\/69 cannot be lightly brushed aside. It is a piece of evidence that goes to prove the existence of joint family nucleus. Even assuming, without admitting, that the Hospet property was the individual property of the assessee before us, the joint declaration dated 10-10-1969 could well be regarded as a document evidencing the factum of the assessee’s having thrown his individual property into the common hotchpot of the family. In this regard, making his position clear, namely that the said argument is taken alternatively, Shri Srinivasan relied on the Calcutta High Court case of CIT v. Bhikraj Jaipuria [l979] 119 ITR 883 for the proposition that the existence of joint family property is not a pre-condition to the throwing of individual property into the common hotch-pot of the family.\n<\/p>\n
17. Shri Srinivasan then contended that in identical circumstances the status of the two brothers of the assessee has been taken as HUF.\n<\/p>\n
18. The next point made by Shri Srinivasan was that the recitals contained in the documents are not conclusive and that the true nature of the property or transaction covered by the documents must be ascertained de hors the recitals and with reference to the relevant facts and surrounding circumstances. Shri Srinivasan then contended that the assessee before us was managing the ancestral properties that fell to his share as the karta of the family. Therefore, he was competent to sell the Hospet property for purposes of acquiring the Padmanabha Nagar property. In that regard he is also competent to borrow moneys. Simply because he had borrowed moneys, it cannot be said that the property in question becomes self-acquired. In this regard he referred to and relied upon the Madras case of Sinna Subba Goundan v. M. Rangai Goundan AIR 1946 Mad. 141 cited at page 131 of S.V. Gupte’s “Hindu Law”, Vol. I, Third Edition.\n<\/p>\n
19. Dealing with the Departmental Representative’s contention that all that could be said about the 27-2-1936 deed of conveyance relating to the Hospet property was that there was a case of purchase of property in the joint names of assessee and assessee’s father, Shri Srinivasan contended that it is immaterial whether the property is acquired singly or jointly. Where a property is purchased jointly with persons who are members of joint family, the property would not be the separate property of each of the persons concerned, unless there is evidence to show that the joint acquirers did so in partnership resting on a contract and not as members of joint family, (see – page 133, ibid)<\/p>\n
20. Summing up his arguments, Shri Srinivasan contended that the existence of joint family nucleus having been proved, the CIT(Appeals) was justified in holding that the Padmanabha Nagar property belonged to the HUP of which Nithyanandam was karta at the relevant point of time.\n<\/p>\n
21. In his reply, dealing with the alternative contention of Shri Srinivasan to the effect that the 10-10-1969 joint declaration could be regarded as a document evidencing the throwing into the common hotch-pot by the assessee of his individual property, Shri Tilakchand contended that the assessee’s case was that the Hospet property belongs to the HUF and that, therefore, there cannot be any question of blending what was already HUF property with HUF property once again. Secondly, he contended that by taking a loan from Indian Bank the assessee, as the karta of the family, had created a liability to the family which he was not competent to do.\n<\/p>\n
22. We have looked into the facts of the case. We have considered the rival submissions.\n<\/p>\n
23. The basic question before us is whether the assessee has proved the existence of joint family nucleus so as to be able to contend that the P idmanabha Nagar property belongs to the HUF and not to him in his i; dividual capacity. The Hindu law upon this aspect of the case is well settled. As has been pointed out by the Privy Council in the case of Appslaswami v. Suryanarayanamurti AIR 1947 PC 189 “Proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property is joint, to establish the fact. But where it is established that the family possessed some joint property, which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the burden shifts to the person alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property.\n<\/p>\n
24. The above proposition of law was quoted with approval by the Supreme Court in the case of Srinivas Krishnarao Kongo v. Narayan Devji Kongo AIR<\/a> 1954 SC 379.\n<\/p>\n
25. Again, the Andhra Pradesh High Court in the case of Yendapalli Venkataraju v. Yendapalli Yedukondalu alias Venkateswarlu AIR 1958 AP 147 summarised the position thus: “The existence of joint family property is not a pre-requisite to constitute a joint family. There is no presumption that the property held by a member of a joint Hindu family is joint. It is for the person asserting that any item is joint to prove it to be so. If it is established that the family owned joint property which might have reasonably formed the nucleus wherefrom the property in dispute could have been acquired, there is a shifting of the burden to the party setting up exclusive title to the properties on the ground of acquisition as a result of his own exertions and without any help from the joint family property.\n<\/p>\n
26. In the case before us, the undisputed fact is that the Hospet property was purchased in 1936, no doubt in the joint names of the assessee and his father. From the relevant portions of the sale deed which have been extracted in the assessment order, it is clear that the assessee (who at the time was about 2 1\/2 years of age) and his father belonged to a well-to-do family. The said statement, which was made by the seller of the Hospet property, is also supported by the fact that even in 1936 the Hospet property was purchased for what then was a princely sum of Rs. 1,875. The assessee’s case is that the purchase consideration came from the joint family at that time headed by his grandfather. We see no reason to doubt the veracity of this statement.\n<\/p>\n
Secondly, as rightly contended by Shri Srinivasan, the fact that the property was purchased in the joint names of the assessee and his father, both members of the joint family, could not without anything more, lead to the conclusion that the property was purchased for the individual benefit of the assessee and his father.\n<\/p>\n
Thirdly, nothing turns on the fact that the assessee had on one occasion stated that his grandfather had financed the purchase of the Hospet property, while on another he had averred that his father had paid the purchase consideration. Besides the obvious point that the assessee need not pass a memory-test to succeed in his legal claim, there is the significant fact that, irrespective of who had financed the purchase of the Hospet land, be it the assessee’s grandfather or the assessee’s father, as far as the assessee is concerned, the Hospet property is ancestral in character.\n<\/p>\n
Fourthly, there is the joint declaration made by the three brothers on 10-10-1969, which makes it clear that many items of joint family properties, including the Hospet land, came to be allotted to the share of each of them. As we see it, the said document dated 10-10-1969 cannot be lightly brushed aside. If regard be had to the chronology of events, namely, that Yathiraj Mudaliar died on 3-6-1968, and that, after a decent interval, the said declaration came to be made, it will readily be seen that, on the death of their father, the brothers wanted to put on record the manner in which the joint family properties were shared by them. This step is in accord with human conduct. We, therefore, see no reason to doubt the veracity of the joint declaration of 10-10-1969.\n<\/p>\n
27. Thus, in this case it has been shown that there was a joint family nucleus. It was also shown that the Hospet property, which was a joint family property, was sold for a sum of Rs. 80,000 and the sale proceeds utilised, in part, in the construction of the property at Padmanabha Nagar. Thus, the assessee has discharged the onus that lay on him of proving that the property in question is joint family property. Therefore, the onus of proving that the said property is the exclusive property of Nithyanandam shifts on to the Department.\n<\/p>\n
Here the Department has not introduced any evidence to prove its case. What is more, by the simple process of rejecting unreasonably the good evidence produced by the assessee, the ITO has converted good proof into no proof. This he cannot be permitted to do-nee the Supreme Court case of Sreelekha Barterjee v. CIT [1963] 49 ITR 112.\n<\/p>\n
28. The learned Departmental Representative, it may be recalled, argued that by taking loans from Indian Bank for constructing the subject-property, the assessee, as karta of the family, had created a liability to the family. This contention is fit to be rejected. The loans were obtained for the purpose of bringing into existence a new and more valuable asset for the benefit of the family.\n<\/p>\n
29. Both the ITO and the learned Departmental Representative have laid great stress on the recitals contained in the loan agreement dated 19-2-1973 and the rental agreement dated 21-1-1975. It is well settled that recitals do not settle legal issues. If that were so, of what avail are such doctrine as the doctrine of “detriment to the joint family”, the doctrine of “diversion by over-riding title” and the like?\n<\/p>\n
30. There is yet another circumstance which is note-worthy. In the case of the assessee’s two brothers, in identical circumstances, their status has been taken as that of HUF. Only the assessee was singled out for a different, treatment – and, as we see it, without any basis,<\/p>\n
31. Finally, the fact that the Hospet property was not included in the estate duty return of the estate of late Sri Yathiraj Mudaliar, or even the fact that the dividend from the shares of Indian Sugars Ltd., which was allotted to his branch of the family was returned by Shri Nithyanandam in his individual return of income are not conclusive of the matter.\n<\/p>\n
32. In the facts and on the circumstances of the case, the Madras decision in L. Balasubramaniam’s case (supra) which turned on an entirely different set of facts, cannot avail the Department.\n<\/p>\n
33. In view of the foregoing, therefore, we hold that the CIT(Appeals) was justified in coming to the conclusion that the Padmanabha Nagar property belonged to the joint Hindu family of which Nithyanandam is the karta. We, therefore, decline to interfere in the matter.\n<\/p>\n
34. In the result, all the departmental appeals are dismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Income Tax Appellate Tribunal – Madras Income-Tax Officer vs A.Y. Nithyanandam on 5 September, 1991 Equivalent citations: 1992 41 ITD 49 Mad Bench: T R Rao, S Kannan ORDER S. Kannan, Accountant Member 1. These four departmental appeals are centered on a common issue. They were, therefore, heard together and are disposed of by a […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[1],"tags":[],"class_list":["post-126072","post","type-post","status-publish","format-standard","hentry","category-judgements"],"yoast_head":"\nIncome-Tax Officer vs A.Y. 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