Harijan Magha Jesha Vs. State of Gujarat - Court Judgment

Excerpt:
- [] on partition being effected through a suit, a hindu joint family who has only an interest in the entire joint family property acfamily. the preliminary decree passed by the court determined 10/16 as the share of the appellant family and 6/16 as that of the other branch. those assets of the erstwhile larger joint family which could not be physically divided were auctioned between the two branches and in this manner a sugar mill was purchased for 34 lacs by the appellant family. in income-tax proceedings depreciation under s. 10(2) (vi) of the indian income-tax act, 1922 was claimed on the above valuation of 34 lacs. the claim was rejected by the income-tax officer as well as the appellate assistant commissioner, on the ground that the value for the purpose of depreciation was not the price determined at the family auction, but the original cost to erstwhile larger joint family. the tribunal held that the 6/16 share of the other branch was purchased at the auction and its value had to be taken as the basis of the price determined at the auction, but the appellant family's own share of 10/16 was not purchased at the auction and therefore had to be valued at the original cost to the larger joint family. in reference, the high court held that the distinction made by the tribunal was wrong and that the shares of both branches had to be valued on the basis of the original cost to the larger family. appeal was filed before this court with certificate. held: per subba rao and sikri, jj. it may be that in strict legal theory partition may not involve a transfer, but the substance of the transaction is that an erstwhile member of a joint hindu family who has only an interest in the entire joint family property acquires an absolute title to a specific property. the cost of the property to the member at the date of partition would be the value given to it for the purpose of allotment. provided it was real, or the price at which he purchased it in auction, or the value of it ascertained otherwise. [647a-c] in the case of assessees acquiring a property by purchase, gift, bequest, or succession, courts have held that the cost of the property to the assessee was not the original cost of it to his predecessor but its actual cost to him at the time of the purchase, gift, bequest or succession. in substance there is no difference in the matter of ascertaining the cost of an asset to an assessee whether he is a donee, purchaser, legatee, successor, or a divided member e.f a joint hindu family. [646d; 647a] commissioner of income-tax, madras v. the buckingham & carnatic company, ltd., madras(1935)3 i.t.r. 384(p.c.), jagata coal co. ltd. v. commissioner of income-tax, west bengal (1959) 36 i.t.r. 521 (s.c.), indian iron & steel co. ltd. v. commissioner of income-tax, bengal, (1943) 11 i.t.r. 328 (p.c.), francis vallabaravar v. commissioner of income-tax, madras (1960) 40 i.t.r. 426 and commissioner of income-tax, bombay v. solomon & sons (1933) 1 i.t.r. 324, referred to. commissioner of income-tax, u.p. & c.p.v. seth mathuradas mohta, (1939)7 i.t.r. 160, disapproved. in the present case the valuation given to the property was not notional but a real one; indeed the property was sold in the open auction between the members of the larger joint family and the value fetched thereunder entered into the scheme of partition. [647 c-d] therefore, even in respect of the appellant's own share of 10/16, the valuation for the purposes of s. 10(2)(vi) had to be on the basis the price which the appellant bid at the auction. per shah, j. (dissenting). by the preliminary decree the appellant family became entitled to a 10/16th share in every item of the property of the larger joint family; the other branch became entitle to the remaining i.e. 6/16th share in each item. the appellant being already owner of 10/16th share could not purchase the same at the auction. in substance the appellant purchased, by being declared the highest bidder, the remaining 6/16th share belonging to the other branch. [650 c-e] the asset in question, viz, the sugar factory, at all material times remained a business asset. acquisition of the interest of the other branch by the appellant did not alter the character or use of the asset; nor did it make any fundamental alteration in its value to the appellant so as wholly to displace its original value even in respect of its share which it continued to own. [654 b-d] the tribunal therefore, had rightly held that in respect of the 6/16th share of the other branch, depreciation had to be allowed to the appellant on the basis of the auction price. the high court wrongly interfered with this finding the revenue not having appealed against it. on the appellant's 10/16th share, which the appellant could not be said to have purchased, depreciation had to be calculated on the basis of original cost to the larger family. [654 e-g] case law discussed. - 1 and we feel that it will be wholly unsafe to act on the solitary testimony as it does not appear to be free from blemish or infirmity. 1 himself, it is clearly mentioned that when the mamlatdar came to the village, it was one maganbhai which according to the counsel for the state should be khetan bhai who narrated the story to the mamlatdar. even assuming that the view taken by the high court is correct, the circumstances clearly disclose that the view taken by the learned sessions judge was also reasonably possible.s. murtaza fazal ali, j.1. in this appeal under section 2(a) of the supreme court (enlargement of criminal appellate jurisdiction) act the appellant has been convicted under section 302 and sentenced to imprisonment for life. the appellant was tried by the learned sessions judge who acquitted the accused of the charges framed against him. the state then filed an appea before the high court against the order of acquittal which was successful and the high court reversed the order of acquittal and convicted the appellant as indicated above. a resume of the prosecution case has been given in the judgment of the high court and it is not necessary for us to repeat the same over again.2. the entire conviction of the appellant is founded on the testimony of witness p.w. 1 megha. the trial court after considering the evidence of this witness completely disbelieved him and expressed doubts regarding his presence at the spot mainly on the following grounds:1. that while the witness definitely stated that rule 1 had struck a stick injury on the head of the deceased, yet from the medical evidence, it appears that there was no such injury at all; 2. that according to the evidence of p.w. 1, megha he caught hold of accused no. 1 while he was holding utensils yet we do not know what happened to utensils which were neither seized nor a seizure list of the same was prepared at the spot.3. that while the witness p.w. 1 was catching hold of accused no. 1, the appellant if he wanted to assault the deceased, should have first got him released from the grip of p.w. 1 which he had not done.in view of these serious infirmities the trial court refused to act on the solitary evidence of this witness. when the matter camp up before the high court, the high court thought that none of the reasons given by the sessions judge were relevant but were easily explainable. the high court observed that as the stick blow was given to the deceased from' behind, the witness might not have been able to see the exact spot which was hit by the stick and that explained why he mentioned that stick hit the deceased on the head. while this view is plausible, it is equally possible that as the witness was not present at the time of occurrence, therefore he committed a grave mistake in describing the nature of the injury caused to the deceased. it cannot be said, in the circumstances, that the view taken by the sessions judge was perverse and not at all borne out by the evidence on the record. similarly, the other two reasons given by the sessions judge could not be brushed aside as being totally irrelevant. we have carefully perused the evidence of p.w. 1 and we feel that it will be wholly unsafe to act on the solitary testimony as it does not appear to be free from blemish or infirmity. mr. shah appearing for the state vehemently relied on certain circumstances to corroborate the evidence of p.w. 1. in the first place, he stated that on the personal search of the appellant, a chadi was found which was blood stained and according to the report of the serologist, it contained human blood. unfortunately, however, as this circumstance was not put to the accused in his statement under section 342, the prosecution cannot be permitted to rely on this statement in order to convict the appellant particularly after he had been acquitted by the trial court. it was then contended that p.w. 1 had immediately narrated the occurrence to the mamlatdar who had arrived at the scene of the occurrence. he relied on the diary ex. 22. so far as diary ext. 22 is concerned, that does not appear to have been proved according to law. although mamlatdar was examined as a. witness he was never asked to identify p.w. 1 as the very person who had narrated the occurrence to him when he visited the spot but in his statement named mava lakhe as the person who narrated the incident to him. on the other hand in the f.i.r. lodged by p.w. 1 himself, it is clearly mentioned that when the mamlatdar came to the village, it was one maganbhai which according to the counsel for the state should be khetan bhai who narrated the story to the mamlatdar. thus it appears that three inconsistent pleas have been taken by the prosecution on such a vital matter. this, therefore, knocks the bottom out of the case of the prosecution on this point and shows that if anybody narrated the story to the mamlatdar, it was not p.w. 1 at all. having regard to these circumstances the testimony of p.w. 1 is not free from doubt. we feel that this was not a case in which the high court ought to have reversed the order of acquittal passed by the sessions judge. even assuming that the view taken by the high court is correct, the circumstances clearly disclose that the view taken by the learned sessions judge was also reasonably possible. once this is so, there can be no question of reversing the order of acquittal. for these reasons, this appeal is allowed the judgment of the high court is set aside and the appellant is acquitted of the charges framed against him.