Income-tax Officer, V. Shri Ganpat Changa Gowari, Raigad

ITA 1312/PUN/2016

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 2507 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 2 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-08-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 25-06-2018
• Assessment Year: 2005-2006
• Appeal Filed On: 13-06-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR VIVEK AGGARWAL
• Keywords: Capital asset; Additional evidence; Cost of acquisition
• Section: 143(3); 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUNE . , , , BEFORE SHRI D. KARUNAKARA RAO, AM AND SHRI VIKAS AWASTHY, JM . / ITA NO . 13 10 /P U N/201 6 / ASSESSMENT YEAR : 20 0 5 - 06 THE INCOME TAX OFFICER, WARD 1, PANVEL ....... / APPELLANT / V/S. SHRI PADU CHANGA GOWARI, AT + PO : KAMOTHE, TALUKA PANVEL, DISTT. - RAIGAD PAN : BDBPG0027J / RESPONDENT . / ITA NO .1311/PUN/2016 / ASSESSMENT YEAR : 2005 - 06 THE INCOME TAX OFFICER, WARD 1, PANVEL ....... / APPELLANT / V/S. SHRI SADU CHANGA GOWARI, L/H. SHRI DATTATRAYA SADU GOWARI, AT + PO : KAMOTHE, TALUKA PANVEL, DISTT. - RAIGAD PAN : AKRPG8781H / RESPONDENT 2 ITA NO S.1310, 1311 & 1312/PUN/2016, A.Y. 2005 - 06 . / ITA NO .131 2 /PUN/2016 / ASSESSMENT YEAR : 2005 - 06 THE INCOME TAX OFFICER, WARD 1, PANVEL ....... / APPELLANT / V/S. SHRI GANPAT CHANGA GOWARI, AT + PO : KAMOTHE, TALUKA PANVEL, DISTT. - RAIGAD PAN : BJEPG7103E / RESPONDENT ASSESSEE BY : S /S HRI PRATEEK JHA & PRAYAG JHA REVENUE BY : DR. VIVEK AGGARWAL / DATE OF HEARING : 25 - 05 - 2018 / DATE OF PRONOUNCEMENT : 23 - 0 8 - 201 8 / ORDER PER VIKAS AWASTHY, JM : TH ESE THREE APPEALS BY THE REVENUE AGAINST THREE DIFFERENT ASSESSEES ARE DIRECTED AGAINST THE ORDER OF COMMI SSIONER OF INCOME TAX (APPEALS) - 2, AURANGABAD FOR THE ASSESSMENT YEAR 2005 - 06 IN THEIR RESPECTIVE CASES. ALL THE IMPUGNED ORDERS ARE DATED 22 - 03 - 2016. SINCE, THE ISSUES INVOLVED IN ALL THESE APPEALS ARE IDENTICAL AND ARE ARISING FROM SAME SET OF FACTS, THESE APPEALS ARE TAKEN UP TOGE THER FOR ADJUDICATION AND ARE BEING DISPOSED OF VIDE THIS COMMON ORDER. 3 ITA NO S.1310, 1311 & 1312/PUN/2016, A.Y. 2005 - 06 2. THE BRIEF FACTS OF THE CASE AS EMANATING FROM RECORD S ARE : THE ASSESSEE S ARE INDIVIDUALS AND RELATED TO EACH OTHER (BROTHERS). THE ASSESSEES HAD JOINT INTEREST IN ANCESTRAL AGRICULTURAL LAND THAT WAS ACQUIRED BY STATE GOVERNMENT FOR CIDCO IN 1970. IN LIEU OF LAND ACQUIRED A DEVELOPED PLOT OF LAND BEING NO. 12, SECTOR - 10, KAMOTHE ADMEASURING 3415.75 SQ. MT. WAS ALLOTTED BY CIDCO ON LEASEHOLD BASIS IN THE YEAR 2003. EACH ASSESSEE HAD 1/4 TH SHARE IN SAID LAND. THE ASSESSEES JOINTLY SOLD THEIR RIGHTS IN THE SAID LAND FOR A TOTAL CONSIDERATION OF RS.2,78,62,000/ - IN THE FINANCIAL YEAR 2004 - 05. THE ASSESSEES NEITHER FILED ANY RETURN OF INCOME NOR PARTICIPATED IN ASSESSMENT PROCEEDINGS INITIATED BY ASSESSING OFFICER ON THE BASIS OF INFORMATION RECEIVED. THE ASSESSING OFFICER COMPLETED THE ASSESSMENT U/S. 144 O F THE INCOME TAX ACT, 1961 (HEREINAF TER REFERRED TO AS THE ACT ) HOLDING THE GAIN AS LONG TERM CAPITAL GAIN. THEREAFTER, ASSESSMENTS OF ALL THE THREE ASSESSEES WERE REOPENED U/S. 148 R.W.S. 147 OF THE ACT ON THE GROUND THAT IN THE ABSENCE OF DATE OF ACQUISITION OF LAND, THE GAIN ON SALE OF RIGHT IN LAND HAS TO BE TREATED AS SHORT TERM CAPITAL GAIN. THE ASSESSING OFFICER MADE ADDITION OF RS.69,22,666/ - I.E. 1/4 TH SHARE IN TOTAL CONSIDERATION AS SHORT TERM CAPITAL GAIN IN THE HANDS OF EACH ASSESSEE. AGGRIEVED BY THE ASSESSMENT ORDER PASSED U/S. 143(3) R.W.S. 147 OF THE ACT, THE ASSESSEES FILED APPEALS BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS) PRIMARILY ON TWO GROUNDS : I . THE LAND ACQUIRED BY CIDCO WAS ANCESTRAL AGRICULTURAL LAND WHICH BELONG ED TO HUF , T HEREFORE, THE PLOT ALLOTTED BY THE CIDCO IN LIEU OF COMPULSORY ACQUISITION IS ALSO HUF PROPERTY AND HENCE, CANNOT BE TAXED IN THE HANDS OF INDIVIDUALS. 4 ITA NO S.1310, 1311 & 1312/PUN/2016, A.Y. 2005 - 06 II . THE COST OF ACQUISITION HAS TO BE DETERMINED IN ACCORDANCE WITH THE ORDER OF TRIBUNAL IN THE CASE OF ATUL G. PURANIK VS. ITO REPO RTED AS 11 TAXMANN.COM 92 (MUM.). THE COMMISSIONER OF INCOME TAX (APPEALS) ACCEPTED BOTH THE CONTENTIONS OF THE ASSESSEES AND HELD THAT THE LONG TERM CAPITAL GAIN ARISING FROM TRANSFER OF RIGHTS IN LAND IS NOT BE ASSESSED IN THE HANDS OF THE INDIVIDUAL MEMBERS OF THE JOINT FAMILY . THE COMMISSIONER OF INCOME TAX (APPEALS) FURTHER HELD THAT IN THE LIGHT OF DECISION RENDERED IN THE CASE OF ATUL G. PURANIK VS. ITO (SUPRA) , THE MARKET VALUE OF THE LEASE RIGHTS IN THE PLOT OF LAND AS ON 09 - 06 - 2003 ARE TO BE A DOPTED FOR THE PURPOSE OF COMPUTATION OF CAPITAL GAIN. 3. AGAINST THE FINDINGS OF COMMISSIONER OF INCOME TAX (APPEALS), THE REVENUE IS IN APPEAL BEFORE THE TRIBUNAL. THE GROUNDS RAISED BY THE REVENUE ASSAILING THE FINDINGS OF COMMISSIONER OF INCOME TAX (APPEALS) IN ITA NO. 1310/PUN/2016 ARE AS UNDER : 1. CIT(A) HAS ERRED IN HOLDING THAT THE CAPITAL GAIN SHOULD BE TAXED IN THE HANDS OF 'JOINT FAMILY', AS ANY SUCH ENTITY IS NON - EXISTENT IN THE CASE OF THE ASSESSEE. FURTHER, THE DEVELOPMENT AGREEMENT DATED 15/07/2004 (BETWEEN MANGALMURTHY DEVELOPERS AND 'OWNERS') DO NOT REFERS TO ANY ENTITY LIKE 'JOINT FAMILY' BUT AS INDIVIDUALS. 2. CIT(A) HAS ERRED IN DRAWING A CONCLUSION ON THE BASIS OF LAND RECORDS FROM TALATHI OFFICE THAT THE PROPERTY IN QUESTION BELONGS TO THE 'JOINT FAMILY' AND THEREFORE CAPITAL GAIN IS ALSO ASSESSABLE IN THE HANDS OF THE 'JOINT FAMILY'. IN FACT IN THAT LAND REC ORDS ALSO NAMES OF ALL THE INDIVIDUALS ARE MENTIONED BUT THERE IS NO MENTION OF ANY JOINT FAMILY. 3. CIT(A) HAS ALSO ERRED IN DIRECTING THE AO TO ADOPT THE MARKET VALUE OF THE LEASE RIGHTS IN THE PLOT OF LAND AS ON 09/06/2003 FOR THE PURPOSE OF COMPUT ATION OF CAPITAL GAIN IN THE CASE OF ASSESSEE. FURTHER, CONSIDERING THE OPINION OF CIT(A) TO ASSESSEE THE CAPITAL GAIN IN THE HANDS OF 'JOINT FAMILY', THIS DIRECTION IS CONTRADICTORY TO THE FIRST ONE. 5 ITA NO S.1310, 1311 & 1312/PUN/2016, A.Y. 2005 - 06 4. THE ORDER OF THE CIT(A) MAY BE VACATED AND THAT OF THE ASSESSING OFFICER MAY BE RESTORED. 5. THE APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTER OR DELETE ANY GROUND OF APPEAL. IDENTICAL GROUNDS HAVE BEEN RAISED BY THE REVENUE CHALLENGING THE FINDINGS OF COMMISSIONER OF INCOME TAX (APPEALS) IN ITA NOS. 1 311 & 1312/PUN/2016. 4 . DR. VIVEK AGGARWAL REPRESENTING THE DEPARTMENT SUBMITTED THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER OBSERVED THAT THE ASSESSEE HAS SOLD PLOT OF LAND AND CAPITAL GAIN ARISING FROM SALE OF RIGHTS IN PLOT OF LAND PLOT NO. 12, SECTOR - 10, KAMOTHE HAS NOT BEEN OFFERED TO TAX. THE ASSESSING OFFICER ADDED THE CAPITAL GAIN RS.69,22,666/ - ARISING FROM SALE OF SHARE IN RIGHTS OF PLOT. IN FIRST APPELLATE PROCEEDINGS THE COMMISSIONER OF INCOME TAX (APPEALS) DELETE D THE ADDITION TAKING A VIEW THAT THE PROPERTY BELONGS TO JOINT FAMILY, THEREFORE, IT SHOULD NOT HAVE BEEN TAXED IN THE HANDS OF INDIVIDUAL ASSESSEES. THE LD. DR SUBMITTED THAT SIMILAR STAND WAS TAKEN BY THE ASSESSEE BEFORE THE ASSESSING OFFICER. THE ASS ESSING OFFICER REJECTED THE CONTENTIONS OF THE ASSESSEE AS AN AFTERTHOUGHT . THE LD. DR POINTED THAT A PERUSAL OF DEVELOPMENT AGREEMENT WITH M/S. MANGALMURTHY ASSOCIATES WOULD SHOW THAT THE ASSESSEE HAS RECEIVED PLOT AND SHOPS IN LIEU OF SALE OF RIGHTS IN PLOT OF LAND AS CONSIDERATION, HENCE, THE ASSESSEE IS LIABLE FOR PAYMENT OF CAPITAL GAIN S ON ACCOUNT OF SALE OF PLOT. THE ASSESSEE HAS NOT FURNISHED ANY DOCUMENTARY EVIDENCE DURING THE ASSESSMENT PROCEEDINGS TO SHOW THAT THE HUF WAS IN EXISTENCE AND THAT THE HUF WAS BENEFICIARY OF PLOT AND SHOPS. SINCE, THE PLOT AND SHOPS IN LIEU OF SALE OF PLOT HAS BEEN 6 ITA NO S.1310, 1311 & 1312/PUN/2016, A.Y. 2005 - 06 RECEIVED BY THE INDIVIDUAL MEMBERS OF THE FAMILY , THE CAPITAL GAIN HAS BEEN RIGHTLY ASSESSED BY THE ASSESSING OFFICER IN THE HANDS OF THE INDIVIDUAL MEMB ERS. 4.1 THE LD. DR SUBMITTED THAT A PERUSAL OF DEVELOPMENT AGREEMENT DATED 15 - 07 - 2004 AND SUBSEQUENT RECTIFICATION DEED DATED 12 - 07 - 2005 FURNISHED BY THE LD. AR OF THE ASSESSEES WOULD REVEAL THAT THE ASSESSEE S HAVE RELINQUISHED THEIR RESPECTIVE RIGHTS IN PLOT OF LAND I.E. THE CAPITAL ASSET TO THE DEVELOPER IN LIEU OF PLOT AND SHOPS IN THEIR INDIVIDUAL CAPACITY AND NOT IN THE CAPACITY OF HUF. THE ASSESSEE HAS SIGNED DEVELOPMENT AGREEMENT DATED 15 - 07 - 2004 AND RECTIFICATION DEED DATED 12 - 07 - 2005 IN HIS INDI VIDUAL CAPACITY AND NOT AS MEMBER OF JOINT FAMILY/HUF. THE AGREEMENT NO WHERE MENTIONS THAT THE LAND BELONGS TO HUF. THE LD. DR PRAYED FOR SETTING ASIDE THE IMPUGNED ORDERS AND CONFIRMING THE FINDINGS OF ASSESSING OFFICER. 5 . ON THE OTHER HAND SHRI PRATEEK JHA AND SHRI PRAYAG JHA APPEARING ON BEHALF OF THE ASSESSEE SUBMITTED THAT FATHER OF THE ASSESSEES SHRI CHANGA GOWARI WAS THE OWNER OF AGRICULTURAL LAND WHICH WAS ACQUIRED FOR CIDCO IN FEBRUARY, 19 70. SHRI CHANGA GOWARI DIED INTE - STATE IN JANUARY, 1960. SHRI CHANGA GOWARI WAS SURVIVED BY HIS FOUR SONS NAMELY VITTHAL C. GOWARI, GANPAT C. GOWARI, SADU C. GOWARI AND PADU C. GOWARI. IN THE MUTATION RECORDS , NAME OF ALL THE FOUR SONS WAS RECORDED WITH THE NAME OF VITTHAL C. GOWARI AS HEAD OF JOINT FAM ILY. THE LD. AR POINTED THAT THE RELEVANT EXTRACT OF THE MUTATION REGISTER WAS FURNISHED FOR THE FIRST TIME BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS) AS ADDITIONAL EVIDENCE. THE COMMISSIONER OF INCOME TAX (APPEALS) REFERRED THE DOCUMENTS FOR COMMEN TS TO THE ASSESSING OFFICER. HOWEVER, THE ASSESSING OFFICER DID NOT 7 ITA NO S.1310, 1311 & 1312/PUN/2016, A.Y. 2005 - 06 OFFER ANY COMMENTS ON THE ADDITIONAL EVIDENCE FILED BY THE ASSESSEE AND HENCE, THE SAME WAS ADMITTED BY THE COMMISSIONER OF INCOME TAX (APPEALS). 5.1 THE LD. AR FURTHER SUBMITTED THAT SHRI VITTHAL C. GOWARI DIED AND AFTER HIS DEATH HIS SONS I.E. SHRI EKNATH V. GOWARI AND SHRI HANUMAN V. GOWARI STEPPED INTO HIS SHOES. THE LD. AR POINTED THAT A PERUSAL OF AWARD UNDER SECTION 11 OF LAND ACQUISITION ACT, 1894 AT PAGES 1 AND 2 OF THE PAPER BOOK WOULD SHOW THAT THE NAME OF SHRI VITTHAL C. GOWARI HAS BEEN MENTIONED AS THE OWNER OF THE LAND ENTITLED TO RECEIVE COMPENSATION . THE NAME OF SHRI VITTHAL C. GOWARI IS MENTIONED IN THE CAPACITY OF HEAD OF JOINTLY FAMILY. A FTER HIS DEATH WHEN AGREEMEN T TO LEASE WITH CIDCO WAS EXECUTED ON 09 - 06 - 2003 , IT WAS EXECUTED BETWEEN THE CIDCO AND SHRI EKNATH V. GOWARI, SHRI HANUMAN V. GOWARI, SHRI GAN PAT C. GOWARI, SHRI SADU C. GOWARI AND SHRI PADU C. GOWARI. THE SUBSEQUENT DEVELOPMENT AGREEMENT DATED 15 - 07 - 200 4 WAS ALSO EXECUTED WITH M/S. MANGALMURTHY ASSOCIATES IN THE NAME OF ABOVE MENTIONED 5 PERSONS. THE PLOT OF LAND ADMEASURING 3415.75 SQ. MT. ALLOTTED BY CIDCO IN LIEU OF AGRICULTURAL LAND ACQUIRED BY THE GOVERNMENT FOR DEVELOPMENT PURPOSE BELONG TO HUF WH ICH AT ONE POINT OF TIME WAS HEADED BY CHANGA C. GOWARI AND AFTER HIS DEATH, BY SHRI VITTHAL C. GOWARI. THEREFORE, IT IS NOT THE LAND OF INDIVIDUAL S BUT OF THE HUF. 5.2 THE LD. AR IN ORDER TO CLARIFY THAT JOINT FAMILY AND UNDIVIDED FAMILY ARE SYNONYMOUS TERMS PLACED RELIANCE ON THE DECISION OF HONBLE SUPREME COURT OF INDIA IN THE CASE OF SURJIT LAL CHHABADA VS. COMMISSIONER OF INCOME TAX REPORTED AS 101 ITR 776 . THE LD. AR REF ERRING TO THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF DR. PRAKASH B. SULTANE VS. 8 ITA NO S.1310, 1311 & 1312/PUN/2016, A.Y. 2005 - 06 COMMISSIONER OF INCOME TAX REPORTED AS 280 ITR 593 SUBMITTED THAT THE TERMS JOINT FAMILY AND HUF CAN BE USED INTERCHANGEABLY. WHETHER IT IS JOINT FAMILY OR H UF THE MANNER OF ITS FORMATION IS THE SAME I.E. JOINT HINDU FAMILY CONSISTS OF ALL PERSONS LINEALLY DESCENDED FROM A COMMON ANCESTOR, AND INCLUDES THEIR WIVES AND UNMARRIED DAUGHTERS. THE LD. AR ASSERTED THAT ON THE OFFICIAL WEBSITE OF THE INCOME TAX DEPA RTMENT THE DEFINITION OF HUF IS GIVEN AND THE SAME IS WORDED ON SIMILAR LINES. THE LD. AR FURNISHED THE COPY OF DEFINITION OF HUF DRAWN FROM OFFICIAL WEBSITE OF THE INCOME TAX DEPARTMENT. 6 . W E HAVE HEARD THE SUBMISSIONS MADE BY REPRESENTATIVES OF RIVAL SIDES AND HAVE PERUSED THE ORDERS OF AUTHORITIES BELOW . THE PRIMARY ISSUE WHICH HAS EMERGED FROM THE SUBMISSIONS OF BOTH THE SIDES IS WHETHER THE PLOT OF LAND SOLD BY THE ASSESSEE S ALONG WITH OTHER CO - OWNERS WAS PROPERTY OF THE ASSESSEES HAVING 1/4 T H SHARE JOINTLY OWNED WITH THE OTHER CO - OWNERS OR IT WAS THE PROPERTY OF AN HUF IN WHICH THE ASSESSEE WAS HAVING SHARE AS COPARCENER. 7 . THE ASSESSEE S HAD SHARE IN THE PLOT OF LAND ALLOTTED BY CIDCO ADMEASURING 3415.75 SQ. MT. IN LIEU OF AGRICULTURAL L AND ACQUIRED BY THE STATE GOVERNMENT FOR CIDCO IN THE YEAR 1970. THE AGRICULTURAL LAND (THAT WAS SUBJECTED TO ACQUISITION UNDER LAND ACQUISITION ACT, 1894) WAS INITIALLY RECORDED IN THE REVENUE RECORDS IN THE NAMES OF SHRI CHANGA KANHA GOWARI, FATHER OF T HE ASSESSEE S . AFTER HIS DEMISE IN 1960 A MUTATION WAS ENTERED IN THE NAME OF ASSESSEE S AND OTHER LEGAL HEIRS OF SHRI CHANGA KANHA GOWARI I.E. THE BROTHER OF THE ASSESSEE S . THE FAMILY CHART OF CHANGA KAHNA GOWARI IS AS UNDER : 9 ITA NO S.1310, 1311 & 1312/PUN/2016, A.Y. 2005 - 06 CHANGA KANHA GOWARI (DIED I N 1960) VITTHAL C. GOWARI GANPAT C. GOWARI SADU C. GOWARI PADU C. GOWARI (ASSESSEE) (ASSESSEE) (ASSESSEE) EKNATH V. GOWARI SHRI HANUMAN V. GOWARI 8. AS PER MUTATION ENTRY REGISTRATION NO. 1839 THE AGRICULTURAL LAND WAS RECORDED IN THE NAMES OF VITTHAL C. GOWARI, GANPAT C. GOWARI, SADU C. GOWARI AND PADU C. GOWARI. AS PER ENTRY IN MUTATION REGISTER THE RIGHTS ARE OF JOINT FAMILY HEADED BY VITHAL C. GOWARI. FROM THE REVENUE RECORDS IT TRANSPIRES THAT THE AGRICULTURAL LAND WHICH WAS ACQUIRED BY THE STATE GOVERNMENT FOR CIDCO IN THE YEAR 1970 WAS THE JOINT PROPERTY OF THE FAMILY WITH UNDIVIDED SHARES OF THE LEGAL HEIRS OF SHRI CHANGA KAHNA GOWARI. A PERUSAL OF THE COPY OF AWARD UNDER LAND ACQUISITION ACT, 1 894 FURTHER SHOWS THAT ONLY NAME OF VIT H AL C. GOWARI IS RECORDED AGAINST THE NAME OF PERSON IN THE RECORD OF RIGHTS. THIS FURTHER REINFORCES THE VIEW THAT VITTAL C. GOWARI WAS HEADING THE JOINT FAMILY PROPERTY . THE CIDCO ALLOTTED PLOT OF LAND JOINTLY IN THE NAMES OF ALL THE LEGAL HEIRS OF SHRI CHANGA KAHNA GOWARI. THUS , FROM ABOVE FACTS IT CAN BE DEDUCED THAT THE LAND WAS ALLOTTED TO THE ASSESSEES AND OTHER CO - OWNERS BY CIDCO BEING COPARCENERS OF THE LAND ACQUIRED. 9. T HE MUTATION ENTRY RECORDED IN THE REVENUE RECORDS AND THE COPY OF AWARD UNDER LAND ACQUISITION ACT INDICATES EXISTENCE OF UNDIVIDED JOINT FAMILY PROPERTY. THIS FURTHER GIVES RISE TO THE PRESUMPTION OF EXISTENCE OF HUF. THE LAND HAS BEEN ALLOTTED BY CIDCO IN THE NAMES OF ALL THE COPARCENE RS AS THERE IS NO CONCEPT OF ALLOTTING/REGISTRATION OF LAND IN THE 10 ITA NO S.1310, 1311 & 1312/PUN/2016, A.Y. 2005 - 06 NAME OF HUF. THE HONBLE SUPREME COURT OF INDIA IN THE CASE OF ADIVEPPA VS. BHIMAPPA REPORTED AS 85 TAXMANN.COM 170 HAS HELD : 22) IT IS A SETTLED PRINCIPLE OF HINDU LAW THAT THERE LIES A LEGAL PRESUMPTION THAT EVERY HINDU FAMILY IS JOINT IN FOOD, WORSHIP AND ESTATE AND IN THE ABSENCE OF ANY PROOF OF DIVISION, SUCH LEGAL PRESUMPTION CONTINUES TO OPERATE IN THE FAMILY . THE BURDEN, THEREFORE, LIES UPON THE MEMBER WHO AFTER ADMITTING THE EXIS TENCE OF JOINTNESS IN THE FAMILY PROPERTIES ASSERTS HIS CLAIM THAT SOME PROPERTIES OUT OF ENTIRE LOT OF ANCESTRAL PROPERTIES ARE HIS SELF - ACQUIRED PROPERTY. THE RE IS NO MATERIAL ON RECORD WHATSOEVER TO SHOW THAT ANY PORTION OF JOINT FAMILY PROPERTY WAS DIVIDED BY MEETS AND BOUNDS AMONGST FAMILY MEMBERS. IN THE ABSENCE OF DIVISION OF LAND BY MEETS AND BOUNDS THE PROPERTY CONTINUES TO BE JOIN T FAMILY PROPERTY. THUS, IN THE LIGHT OF THE FACTS OF PRESENT CASE AND THE DECISION OF HONBLE APEX COURT THE EXIS TENCE OF HUF IN THE PRESENT SET OF APPEALS CANNOT BE DENIED. 1 0 . THE NEXT QUESTION THAT ARISES IS WHETHER THE TERM JOIN T FAMILY IN ITS REALM INCLUDES UNDIVIDED FAMILY. THE HONBLE APEX COURT IN THE CASE OF SURJIT LAL CHHABADA VS. COMMISSIONER OF INCOME TAX (SUPRA) HAS HELD THAT JOINT FAMILY AND UNDIVIDED FAMILY ARE SYNONYM OUS TERMS. THE HONBLE COURT FURTHER EXPLAINED AS TO WHY HUF HAS NOT BEEN DEFINED IN THE INCOME TAX ACT AND THE PRESUMPTION OF EXISTENCE OF HUF. THE HONBLE APEX COURT OBSERVED : SE CTION 2(9) OF THE INDIAN INCOME - TAX ACT, 1922, DEFINES A 'PERSON' TO INCLUDE, INTER ALIA, A 'HINDU UNDIVIDED FAMILY'. UNDER SECTIONS 3 AND 55 OF THAT ACT, A HINDU UNDIVIDED FAMILY IS A TAXABLE UNIT FOR THE PURPOSES OF INCOME - TAX AND SUPER - TAX. THE EXPRESSI ON 'HINDU UNDIVIDED FAMILY' FINDS REFERENCE IN THESE AND OTHER PROVISIONS OF THE ACT BUT THAT EXPRESSION IS NOT DEFINED IN THE ACT. THE REASON OF THE OMISSION EVIDENTLY IS THAT THE EXPRESSION HAS A WELL - KNOWN CONNOTATION UNDER THE HINDU LAW AND BEING AWARE OF IT, THE LEGISLATURE DID NOT WANT TO DEFINE THE EXPRESSION SEPARATELY IN THE ACT. THEREFORE, THE EXPRESSION 'HINDU UNDIVIDED FAMILY' MUST BE 11 ITA NO S.1310, 1311 & 1312/PUN/2016, A.Y. 2005 - 06 CONSTRUED IN THE SENSE IN WHICH IT IS UNDERSTOOD UNDER THE HINDU LAW (COMMISSIONER OF INCOME - TAX V. GOMEDALLI LA KSHMINARAYAN [1935] 8 ITC 239; 3 ITR 367 , 369 - 370 (BOM.) . SEE PARTICULARLY THE JUDGMENT OF RANGNEKAR J. AT PAGE 244). THERE IS NO SUBSTANCE IN THE CONTENTION OF THE RESPONDENT THAT IN THE ABSEN CE OF AN ANTECEDENT HISTORY OF JOINTNESS, THE APPELLANT CANNOT CONSTITUTE A JOINT HINDU FAMILY WITH HIS WIFE AND UNMARRIED DAUGHTER. THE LACK OF SUCH HISTORY WAS NEVER BEFORE PLEADED AND NOT ONLY DOES IT FIND NO SUPPORT FROM THE RECORD BUT SUCH AN ASSUMPTI ON IGNORES THE PLAIN TRUTH THAT THE JOINT AND UNDIVIDED FAMILY IS THE NORMAL CONDITION OF HINDU SOCIETY. THE PRESUMPTION, THEREFORE, IS THAT THE MEMBERS OF A HINDU FAMILY ARE LIVING IN A STATE OF UNION, UNLESS THE CONTRARY IS ESTABLISHED (MAYNE'S HINDULAW AND USAGE, ELEVENTH EDITION, PAGE 323; MULLA'S HINDU LAW, FOURTEENTH EDITION, PAGE 284). THE STRENGTH OF THE PRESUMPTION MAY VARY FROM CASE TO CASE DEPENDING UPON THE DEGREE OF RELATIONSHIP OF THE MEMBERS AND THE FARTHER ONE GOES FROM THE FOUNDER OF THE FA MILY, THE WEAKER MAY BE THE PRESUMPTION. BUT, GENERALLY SPEAKING, THE NORMAL STATE OF EVERY HINDU FAMILY IS JOINT AND IN THE ABSENCE OF PROOF OF DIVISION, SUCH IS THE LEGAL PRESUMPTION. THUS, THE TERM JOINT FAMILY REFERRED TO IN THE REVENUE RECORD (MUTATION REGISTER) FURNISHED BEFORE US IMPLIES THAT THE AGRICULTURAL LAND BELONGED TO HUF. 1 1 . IN THE INSTANT CASE AS IS EVIDENT FROM THE DOCUMENTS ON RECORD THE LAND ACQUIRED BY THE STATE GOVERNMENT FOR CIDCO WAS THE PROPERTY OF JOINT FAMILY HEADED BY VITTAL C. GOWARI, IT IS COROLLARY THAT THE DEVELOPED LAND ALLOTTED IN LIEU OF LAND ACQUIRED WOULD BELONG TO HU F. THE ASSESSEE S AND THE OTHER CO - OWNERS ARE COPARCENERS IN THE SAID LAND . IN THE ABSENCE OF ANY DIVISION OF LAND BY MEE TS AND BOUNDS THE LAND AND ANY INCOME GENERATED THROUGH THAT LAND HAS TO BE ASSESSED IN THE HANDS OF HUF. THUS, THE SALE OF RIGHTS IN LAND IS NOT TO BE ASSESSED IN THE HANDS OF INDIVIDUAL CONSTITUENTS OF HUF. ACCORDINGLY, WE DO NOT FIND ANY INFIRMITY 12 ITA NO S.1310, 1311 & 1312/PUN/2016, A.Y. 2005 - 06 IN THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS). THE SAME IS UPHELD AND THE APPEALS OF THE REVENUE ARE DISMISSED BEING DEVOID OF ANY MERIT. 1 2 . IN THE RESULT, ALL THE THREE APPEALS BY THE REVENUE ARE DISMISSED. ORDER PRONOUNCED ON THURSDAY, THE 23 RD DAY OF AUGUST, 201 8 . SD/ - SD/ - ( . /D. KARUNAKARA RAO ) ( / VIKAS AWASTHY) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE; / DATED : 23 RD AUGUST, 2018 RK / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 2, AURANGABAD 4. THE PR. COMMISSIONER OF INCOME TAX - 2, THANE 5. , , , / DR, ITAT, B BENCH, PUNE. 6. / GUARD FILE. / / // TRUE COPY// / BY ORDER, / PRIVATE SECRETARY, , / ITAT, PUNE