FCS Deepak Pratap Singh
INCOME TAX QUESTIONS & ANSWERS SERIES PART-XIII
Whether a person will be taxable under dual capacity as an ‘Individual’ as well as 'Karta' after separation from HUF?
Dear Friends,
In this article, we are going to discuss an interesting situation and taxability of an individual after his separation from HUF.
PROBLEM
Mr. P, is a member of a prosperous HUF, went abroad for his studies. When he returned he was accompanied with Miss S a German Girl. After some time P & S were married under provisions of Special Marriage Act, S continuing to remain a Christian even after her marriage. After two years a son T was born to them and he was not baptised to Christianity. After some time differences however arose between P & S and S has left India after getting divorced from P with her son T. The custody of son T was given to Mr. P by the court and Mr. P apart from his interest in HUF has huge amount of income from salaries and other sources. He wants to separate himself from HUF I which he and his son T are the only members. He wants to know that after separation from HUF. Whether he can be assessed in dual capacity as an Individual and the Karta of HUF.
ANSWER
In the given case Mr. P was married to Miss S under Special Marriage Act, 1954. Under. Provisions of Section 19 of that act provides that ;
Effect of marriage on member of undivided family
The marriage solemnized under this Act of any member of an undivided family who professes the Hindu, Buddhist, Sikh or Jain religions shall be deemed to effect his severance from such family.
Thus from the date of marriage of Mr. P with Miss S ,itself Mr. P is legally separated. From his HUF. On this deemed partition Mr. P acquired his right to his share in the HUF properties -a right which is Sui generics. No circumstance, except those mentioned in law, e.g. unchastity, murder, lunacy, etc., could have disinherited-him from his share of the ancestral property.
After marriage the status of Mr. P was that of an individual. When his son borne , he and his son have ordinary made up a HUF if and only if the son T were a Hindu. It was given in the above problem that Master T son of Mr. P never baptised to Christianity. But what is relevant here is the definition of " HINDU" given in various laws such as the Hindu. Succession Act, Hindu. Marriage Act, Hindu Minority and Guardianship Act, and Hindu Adoption and Maintenance Act. These legislation’s governing customers prevailing in Hindu family provides different definitions of HINDU.
LET'S CONSIDER MOST APPROPRIATE DEFINITION
"Any child, legitimate or illegitimate, one of whose parents are Hindu, Buddhist, Jain or Sikh by religion and who is brought up as a member of the tribe, group or community to such parents belong or belonged."
LET'S ANALYSE THE CASE
Since Master T has been taken away At the time of his Infancy To Germany by his mother , is not going to brought up as a Hindu. If he remained in India and were brought up as a Hindu by his father , he would have been a Hindu and along with his father could have formed a HU. But Master T does not have at the moment , a chance of becoming a Hindu. As he is a non-Hindu ,, he and his Hindu father cannot form a HUF. If in future , circumstances changed and Master T is made to be brought ups as a Hindu, whether in India and abroad, he would become a member if his father HUF.
It clear from above that Mr. P is to be assessed as an. Individual from the date of his marriage and not in dual capacity as an individual and kart of a HUF.
DISCLAIMER: The above write up is an attempt to share information and knowledge with our readers. The view expressed here are the personal views of the author and same should not be considered as a professional advice. It is advisable to consult with your tax consultant before acting on any part of this article.
CAclubindia
