Law: Income Tax Act, 1922

Section: 66(1)

Section 4 of the Income-tax Act, 1961 [Correspondent to section 3 of the Indian Income-tax Act, 1922] - Individual - Assessable as - Assessment year 1957-58 - Whether ancestral property in hands of sale surviving male cannot be considered as belonging to HUF simply because he has wife living at time when property developed upon him or because a daughter is subsequently born to him - Held, yes FACTS The assessee was the adopted son of 'B' who had left certain ancestral properties at the time of his death. For relevant assessment year the ITO assessed the assessee as an individual in respect of the said property. The assessee HUF contended that after the demise of his father the assessee was left as the sole surviving coparcener but the ancestral property continued to belong to the joint family consisting of the assessee and his wife and that after the birth of a daughter she also became the member of the joint Hindu family and that it was only on account of ignorance of law that he had included the income from the said properties in the returns of previous years as his individual income. The ITO having relied upon the observations of the Privy Council in Kalyanji Vithaldas v. CIT [1937] 5 ITR 90 rejected the assessee's contention. On appeal the AAC upheld the order of the ITO. On further appeal, the Tribunal confirmed the order of the AAC. On reference: HELD Although the assessee's wife was a member of the joint Hindu Family during the lifetime of the assessee's father and, if necessity had arisen, she would have been entitled to claim maintenance out of the coparcenaries property, he was not a member of the coparcenaries and she had no ownership over the property. It is well settled that a joint Hindu family consists of all persons lineally descended from a common ancestor and includes their wives and unmarried daughters who have a right of maintenance out of the joint Hindu family property; but at the same time the wife or the unmarried daughter of a coparcener is herself not a coparcener or has any ownership in the coparcenaries property. So long as the coparcenary consisting of the assessee and his father was in existence, there was unity of ownership and…

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