//
archives

Order of Australia

This tag is associated with 2 posts

Sec.271 of INCOME TAX ACT = The AO has to initiate penalty proceedings when he found difference between the reported and assessed income – No separate reasons not necessary to record whether to intiate proceedings or not – but the burden lies on the assessee to give suffcient reasons for show cause notice and the burden shift on the Ao then he has to given reasons for imposing penalty = MAK Data P. Ltd. … Appellant Versus Commissioner of Income Tax-II … Respondent = http://judis.nic.in/supremecourt/filename=40925

Sec.271 of INCOME TAX ACT = The AO has to initiate penalty proceedings when he found     difference between the reported and assessed income – No separate reasons not necessary to record whether to intiate proceedings or not – but the burden lies on the assessee to give suffcient reasons for show cause notice and the burden … Continue reading

Section 6 of the amended Hindu Succession Act = This is the case where the daughters had already expired prior to the coming into force of the amendment Act and prior to any litigation, her son having filed the suit himself. There is nothing in the Section which shows that it would apply to all females retrospectively including a daughter who had expired prior to the coparcener himself, prior to any litigation and prior to the amendment Act itself. If such a daughter was also to be included the entire population would come to be included and the children and grandchildren of all deceased females would claim their share in the estate of their grandparents and great grandparents through their mother. It would have to be seen whether the legislation is capable of such an absurd interpretation. 14.The words “on” and “from” show and suggest that on a date prior to the Act coming into force the daughter (female) would not be included as a coparcener. Consequently, all daughters born to coparceners in a Hindu joint family living at the time the Act came into force would become coparcener. Daughters (females) who had expired a day prior thereto, unfortunately, could not, because they would be covered by the law prior to the amendment. If such interpretation is not given the words “on” and “from” “the commencement of the Hindu Succession (Amendment) Act, 2005” would lose their significance all together and would be rendered otiose. 15.This aspect is essentially decipherable from the proviso to Section 6(1) of the Act cited above. This provision has been specifically enacted to lay down a cu­toff date for the daughter of a coparcener to claim her right as a coparcener including her right of partition which is restricted by any disposition or alienation made prior to 20th December 2004. Hence when the Act came into force on 9th September 2004 partition could be claimed by a daughter, if the coparcenery property was not partitioned about nine months prior thereto. This shows that the earlier dispositions and alienations could not be challenged so that whilst the daughter was not a coparcener and certain rights were created they would stand. This is to lend stability to facts and circumstances that may have prevailed in innumerable families having joint family properties prior to the creation of the new right in favour of the daughter. In the case of Champabai W/o. Darshrathsingh Pardeshi & Ors. Vs. Shamabai @ Shamkuwarbai Gajrajsingh Pardeshi & Anr. 2010 (3) ALL MR 262 this Court considered the dwelling house and the agricultural properties of the deceased, one Dashrathsingh. He died in 1998 having married twice and leaving behind two married daughters born to his first wife and two sons born to his second wife. In this case the retrospectivity of the Act was to be considered. It was observed that succession had opened in 1998 when Darshrathsingh died. There was no amendment to the Hindu Succession Act at the relevant time. The division of shares was immediate without the rights being deferred to the married daughters who were married prior to the Maharashtra Amendment to the Hindu Succession Act. The Maharashtra Amendment with regard to the grant of coparcenery rights to daughter made an exception for married daughters. That amendment, of course, would no longer be applicable in view of the Central Amendment Act. The contention with regard to the dwelling house that the deceased would not take the share was accepted. The shares devolved upon the two sons in 1998 by application of Section 6 r.w. Section 8 of the old Hindu Succession Act of 1956.- It may be mentioned that this was main aspect which was required to be considered to see the prima facie case of the Plaintiff. Unless the Plaintiff had shown a legal right in the estate of Sakharam he cannot proceed with the suit and derail various transfers effected earlier. The filing of the suit decades after Sakharam died, mutation entries came to be made and also five years after the amendment itself came into force would even otherwise be barred by the law of limitation. In this case Sadashiv is the only son of Sakharam has been bequeathed the entire property of Sakharam. It would otherwise be a natural Will. It is also a registered Will. Sadashiv has acted upon the Will and shown himself as owner of the suit properties at least since 3rd December 2002 when the mutation entry came to be made to alter the record of rights. He has dealt with that property by assignment since 2004 and under the registered development agreement since March 2005. The initial developers have, in turn, transferred their properties. Hence transfers have come to be effected from Defendant Nos.14 to 15 to 16 etc. 29.The Defendants further claim that Sadashiv initially obtained the power of attorney from the original owners. The development agreement itself was entered into along with the power of attorney. The initial power of attorney was dated 26th March 1965. A later registered power of attorney has been executed on 16th January 1991. The registered development agreement has been executed on 24th December 2004 by Sakharam and Sadashiv. The developers have been put in possession of the suit properties under possession letters executed in December 2004. With regard to the other property bequeathed under the Will also similarly possession receipt has been executed. The developers, therefore, claim that the suit properties under the development did not even belong to Sakharam at the time of his death. Upon such contention the Counsel on behalf of the original Plaintiff claims that the properties claimed to be purchased by Sakharam and Sadashiv were out of the proceeds of other ancestral properties which formed the nucleus. No document in that regard has been produced. None is seen to have been shown in the trial Court. The impugned order makes no reference to such nucleus. 31.Consequently, on facts as well as law the Plaintiff is not seen to have made out any prima facie case for grant of any interim reliefs. No party can stall all development at such a late stage without showing an iota of legal right.

published in http://bombayhighcourt.nic.in/generatenew.php?path=./data/judgements/2011/&fname=CAO591011.pdf&smflag=N AO.792.2011(JUDGMENT).sxw mnm IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE CIVIL JURISDICTION APPEAL FROM ORDER NO. 265 OF 2011 Sadashiv Sakharam Patil & Ors.  …Appellants Vs. Chandrakant Gopal Desale & Ors. …Respondents ALONGWITH APPEAL FROM ORDER NO. 274 OF 2011 M/s. Roma Builder Pvt. Ltd.  …Appellant Vs. Chandrakant Gopal Desale & Ors.  …Respondents ALONGWITH APPEAL FROM ORDER NO. 518 OF 2011 M/s. Nikhil Construction …Appellant Vs. Chandrakant Gopal Desale & Ors.  …Respondents ALONGWITH APPEAL FROM ORDER NO. 792 OF 2011 M/s.Darshan Enterprises  …Appellants Vs. Chandrakant Gopal Desale & Ors.  …Respondents Deepak Chitnis – Chiparikar & Co., for Appellants Mr. Sandesh Patil for Appellant in AO No.265/2011 Mr. P. Sakseria, Sr. Counsel a/w. Mr. Mayur Khandeparkar a/w.Mr. Ranjit Shetty a/w. Mr. Lucky Rai Indorkar, Mr. Aniket Nair i/b. M/s. Hariani & Co., for Respondent No.1 in AO.No.265/2011 AO No.274.2011, AO No.518.2011 & AO No.792/2011 Mr. R.S. Apte, Sr. Advocate a/w. Mr. G. Godre for Appellant in AO No.274/2011 & Respondent No.14 in AO NO.265/2011 Mr. Deepak Chitnis, Advocate for the Appellant in AO No.180.2011 ::: Downloaded on – 13/08/2013 20:41:00 :::Bombay High Court 2 AO.265.2011-AO.274.2011-AO.518.2011- AO.792.2011(JUDGMENT).sxw for Respondent No.13 in AO No.265/2011. … Continue reading

Blog Stats

  • 2,884,321 hits

ADVOCATE MMMOHAN

archieves

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Join 1,905 other followers

Follow advocatemmmohan on WordPress.com