Index

S.NO TOPIC PG. NO

1. Acknowledgement

2. Introduction

3. What is Hindu Undivided Family

4. Formation of HUF

5. Assessment as Hindu Undivided Family

6. Partition of a Hindu Undivided Family

7. Tax Planning

8. Drawbacks of HUF

9. Benefits OF Hindu Undivided Family

10. Conclusion

11. Bibliography

ACKNOWLEDGEMENT
It gives me immense pleasure and gratitude to thank my TAX LAW teacher, KIRAN BALA
MAAM, who gave me opportunity to do this wonderful project which helped me in doing a
lot of research and I came to know about so many new things. I am thankful to him.

Secondly, I would like to give thanks to all my seniors who have guided throughout the
research process.

Lastly, I feel that my project would not have been completed without the help of my parents
and friends.

YOURS SINCERELY,

NIKHIL KUMAR

TAX TREATMENT OF HINDU UNDIVIDED FAMILY

INTRODUCTION

The word “Tax planning” defines as the most logical analysis of financial situation or plan
from a tax perspective, to align financial goal with tax efficient planning. The purpose of tax
planning is to discover how to accomplish all of the other elements of a financial plan in the
most tax efficient manner possible. Tax planning thus allows the other elements of a financial
plan to interact more effectively by minimizing tax liability. However, it does not amount to
tax evasion, tax evasion defines as an illegal practice where a person, organisation or
corporate intentionally avoids paying his or her tax liability.

Tax planning is possible by taking the advantage of the various provision contained in the
Income-tax Act. Even If a person were to take full advantage of all the provision contained in
the Income tax law specially related to exemptions and deduction, then surely, he will be able
to save substantial amount of income-tax for his family. However, some tax payer also do
various activities to evade from paying tax and such activities are called tax evasion and it is
not recognised by the income tax while tax planning do. If one can go ahead with legal ways
of saving income-tax and this is possible only when we screen very carefully the provisions
contained in the Income-tax Act, 1961 and find out the pointers which are of advantage
looking to our facts and circumstances. One such very smart way of saving income-tax is to
think of forming a separate Tax entity in the name of Hindu Undivided Family. The creation
of Hindu Undivided Family helps the tax payer to save their tax in a legal manner.

What is Hindu Undivided Family?

The Hindu Joint Family system which with its restrictive and joint ownership is one of the
most cherished and striking features of Hindu institutions has really sprung from the ancient
patriarchal family which can be said to be the earliest unit of Human society. The patriarchal
family has been defined as “a group of natural or adoptive descendants, held together by
subjection to the eldest living ascendant, father, and grand-father or great-grand father”. The
Hindu father at one time was also the repository of such authority, and wives, sons, slaves
and cattle were all considered to be equally his property. As time passes, in the next stage, the
despotic position of the patriarch was reduced to that of the representative of the family and
there was definite improvement in the status of its members in relationship to the patriarchal
head. This transition from patriarchal to the joint family must have been gradual and was
bought about by an improvement in the conception of individual rights and the repercussions
of the happenings in the general society upon the member of the family. Individual’s
belongings to other religions are not allowed to form HUF‟s except Jain and Sikh who are
allowed to form HUF even though they are not governed by Hindu law.

In 1956, the Companies Act recognized the HUF as a legal entity in independent India which
could be part of ownership and control structures of corporate entities, i.e. private and public
limited companies. The Indian Partnership Act of 1932 had already given similar recognition
to the HUF in holding structures of partnership firms. The interlocking of the HUF with
corporate governance structures is mediated by the role of the karta in his dual role—as an
individual legal person and as karta of the HUF. For instance, a HUF cannot enter into a
partnership with other persons, as it is not a legal person, but the karta of a HUF can
(Sachdeva 1987).

The recognition of the Hindu Undivided Family as a legal tax entity, separate and distinct
from individuals and corporates (which were firms defined under the Companies Act and the
Partnership Act), was the final step in defining the legal entity of the HUF. While all other
corporate bodies recognized in corporate and individual income tax laws are defined on the
basis of company law, the HUF as a legal entity in Indian tax law is defined on the basis of
Hindu personal law. After defining the HUF through the codification of personal laws in
1955–56, the state then took the next step to perpetuate the “Hindu Undivided Family”
(HUF) as an entity recognized by the 1957 Wealth Tax Act and Section 2 of the 1961 Income
Tax Act, as a distinct unit of taxation, with the grant of tax avoidance facilities on “family
income,” with higher exemptions and lower tax rates as compared to other categories of
assesses. Under the income and wealth tax laws in India, an HUF is assessed for tax as a
distinct unit of assessment and its interlocking relationship with other income- and wealth-
generating entities like companies and firms is not taken into account in the calculation of tax
liability.

The Wanchoo Committee report was scathing in its assessment of the purpose of the HUF. It
held that: “We feel convinced that the Hindu Undivided Family as a unit of assessment is
retained in most cases only when it enables the person concerned to reduce their tax liability
and that in other cases, it is promptly partitioned without considerations of sentiments
coming in the way.”

FORMATION OF HUF

Step1: Create HUF deed.

The HUF deed is a written formal document on a stamp paper stating the name of the Karta
and the co-parceners (members) of the HUF. The eldest male member of the HUF becomes
the Karta of the HUF. A declaration is also provided by each member of the HUF where they
state the name of the Karta and also state that

1. Karta has the authority of the accounts vested in his hands.

2. That the members are the only members of the HUF.
3. The Karta holds the right to govern all the transaction of the HUF accounts on behalf
of the members.

Step 2: Apply for HUF PAN Card

As a HUF is treated as a separate entity differs from its members, a HUF is required to apply
for a separate PAN Card. An application for HUF PAN Card is required to be made in Form
49A which can be furnished online as well as manually. Once the PAN Card has been
allotted, the HUF is required to file separate Income-tax Returns and can therefore claim
benefits of Income Tax Slabs as well as deduction under various laws of Income tax Act.
Which are available to an individual. The application for PAN Card and ITR would be signed
by the Karta.

Step 3: Open HUF bank account

A HUF is also required to open a Bank Account in which it will received all payment. A
HUF account can be opened in any bank account. At the time of opening of HUF bank
account for creation of HUF, the HUF is also required to have a rubber stamp. It should be
rectangular and not round (RBI circular). Once all these three steps have been completed, the
HUF will then be considered as a separate legal entity and can start receiving payment and
the amount received in the name of the HUF will not be taxed in the hands of an individual
member of the HUF.

ASSESSMENT AS HINDU UNDIVIDED FAMILY

Income of a joint family may be assessed as income of a Hindu undivided family if the
following two conditions are satisfied:

 There should be a Coparcenarship. In this connection, it is worthwhile to mention that

once a joint family income is assessed as that of Hindu undivided family, it continues
to be assessed as such in subsequent assessment years till partition is claimed by its
coparceners.
 There should be a joint family property which consists of ancestral property, property
acquired with the aid of ancestral property and property transferred by its members.

Joint family is a creature of law:

In the case of P.C. Balasanjanna v. Fourth GTO, it was pointed out that a joint family is a
creature of law and not of contract. An ancestral nucleus is the pre-requisite. The ancestral
asset received even on family arrangement can be treated only as joint family property.
However, there should be at least two members to constitute a Hindu Joint Family. 1 Even if
there be one male member along with family members, it can be a Hindu Joint Family either
by survivorship2 or even on partition.

The Supreme Court has held in the case of Bhagwan Dayal v. Reoti Devi that there can be an
identity consisting of all the members of different branches constituting one joint family. But
such a situation can be more easily envisage and be accepted when partial or full partition
takes place and a claim of HUF as between some of the members can be justified for reason
other than tax3.

1
C. Krishna Prasad v CIT, (1974) 97 ITR 493 (SC).
2
Gowli Buddanna v. CIT, (1966) 60 ITR 293 (SC).
3
Bhagwan Dayal v Reoti Devi, AIR 1962 SC 287.
PARTITION OF A HINDU UNDIVIDED FAMILY

Partition -A Hindu joint family gets disrupted by partition in the Hindu law. Even a partial
partition is recognised under the Hindu law. There need be no division by metres and bounds
for disruption of the family. But section 171 of the income-tax Act, 1961 would not
recognised partial partition. It would also require a Hindu Joint family “hitherto assessed” to
be continued to be assessed as such, unless there is a formal order recognising partition from
the Assessing Officer giving a finding, that there has been a total partition by metres and
bounds. As long as such partition order has not been passed, the mere fact of total partition,
even by metres and bounds, would not avoid continue assessment as joint family4.

Procedure of partition and assessment after partition of a Hindu undivided family

Section 171 talks about assessment after partition of a Hindu undivided family, however the
act provides the procedural aspect rather than the substantive law. Sec 171(1) A Hindu family
hitherto assessed as undivided shall be deemed for the purpose of this Act to continue to be a
Hindu undivided family, except where and in so far as a finding of partition has been given
under this section in respect of the Hindu undivided family. (2) where, at the time of making
an assessment under section 143 or section 144, it is claimed by or on behalf of any member
of a Hindu family assessed as undivided that a partition, whether total or partial, has taken
place among the member of such family, the A.O. shall make an inquiry to all the members
of the family.

Assessing Officer must give notice of claim for partition to all members. If the notice of the
enquiry is not given to all the members, but only to some of them, the finding would not be
valid. For the purpose of coming to a conclusion on the claim put forward, the AO may call
for proof, direct or indirect.5 Such enquiry with every member of the family is mandatory.6

Inquiry by AO

(2)A condition precedent to making order under section 171. In terms of section 171 of the
Act, the AO is required to make an inquiry and record a finding as to whether there has been

4
Gaurikanta Barkataky b CIT (2009) 313 ITR 34 (Gau.)
5
Bisweswar Lal Brijlal, in re (1930) 4 ITC 365 (Cal)
6
Ramchandra Gopalji Sughandhi v CIT (1996) 217 ITR 647 (MP).
total or partial partition of the joint family property, and if so, the date on which it had taken
place. A finding without the inquiry is no finding in the eye of Law.

Enquiry on claim

(3) On the competition of the inquiry, the AO shall record a finding as to whether there has
been a total or partial partition of the joint family property, and, if there has been such a
partition, the date on which it has been taken place.

Partition during the accounting year

(4) Where a finding of total or partial partition has been recorded by the AO under this
section, and the partition took place during the previous year,- a) The total income of the joint
family in respect of the period up to the date of partition shall be assessed as if no partition
had taken place; and b) Each member or group of member shall, in addition to any tax for
which he or it may be separately liable and notwithstanding anything contained in clause (2)
of section 10, be jointly and severally liable for the tax on the income so assessed.

Partition after the accounting year

(5) Where the finding of total or partial partition has been recorded by the AO under the
section, and the partition took place after the expiry of the previous year, the total income of
the previous year of the joint family shall be assessed as no partition had taken place; and the
provision of clause (b) of sub-section (4) shall, so far as may be, apply to the case.

Computation of several liability

(7) For the purposes of this section, the several liability of any member or group of members
thereunder shall be computed according to the portion of the joint family property allotted to
him or it at the partition, whether total or partial.

Penalty

(8) The above provisions shall, so far as may be, apply in relation to the levy and collection
of any penalty, interest, fine or other sum in respect of any period up to date of the partition,
whether total or partial, of a HUF as they apply in relation to the levy and collection of tax in
respect of any such period. A Karta of a HUF cannot be arrested or imprisonment for the
failure of the family to pay the tax assessed. It has been held by the Supreme Court in
Kapurchand shrimal v TRO7 that no order of imprisonment may be made against the manager
of the undivided family, for the default of the family to pay the tax dues.

Section 278C inserted by the Taxation Laws (Amendment) Act, 1975 would make the Karta
liable for any offence by HUF, even for purpose of prosecution. The decision in kapurchand
shrimal‟s case is no longer good in law as far as Karta is concerned. While section 278C (1)
would make the Karta liable, sub-section (2) would refer to immunity of any member for any
act committed without his consent or is not attributable to any neglect on his part. Members
of a disrupted Hindu undivided family have been held entitled to appeal from an order
levying penalty on the family.8

Explanation

Partition means – (i) Where the property admits of a physical division, a physical division of
the property, but a physical division of the income without a physical division of the property
producing the income shall not be deemed to be a partition; or (ii) Where the property does
not admit of a physical division, then such division as the property admits of, but a mere
severance of status shall not be deemed to be a partition. In the case of V.V.S. Natarajan v.
CIT, Dalichand Tejraj v CIT and CIT v Shanti Kumar Jagabhai, it was held that a HUF
consisting of one male member cannot be partitioned, but these decision were found
unacceptable to the Guwahati High court in the case of CIT v Mulchand sukaml jain, wherein
it was held that under section 6 of the Hindu Succession Act, the right of female heir gets
crystallized by deeming a partition but it is only on actual partition, that the shares get
divided. Hence, there could be a valid partition between a mother and her minor son, but this
could be only after the death of the minor’s father.

Partial partition is derecognised

Section 171 of the income-tax Act requires that a Hindu joint family hitherto assessed should
continue to be assessed as such unless a partition has been recognised. It was once possible to
have a partial partition. But an amendment to section 171 by the finance (no.2) Act, 1980 by
way of insertion of sub-section (9) to the said section has derecognised any partial partition
made after 31st day of December, 1978, “Partial partition” means a partition which is partial
as regard the person constituting the Hindu undivided family, or the properties belonging to
the Hindu undivided family, or both. A plain reading of this provision would mean that there

7
(1969) 72 ITR 623(SC)
8
Tatawartgy Narayana Murthy v CIT (1963) 49 ITR 766 (AP).
has been a total partition or none at all under the income-tax law. The constitutionality of
section 171(9) was questioned before the Madras High Court successfully in the case of M.V.
Valliappan v ITO. But the decision of the madras High Court has been reversed by the
Supreme Court in Union of India v M.V. Valliappan so that the scope for tax planning by way
of partial is no longer available.

TAX PLANNING

Ordinarily, dual capacity, helps to reduce tax. But where the HUF has a large income with
many coparceners, the liability of the HUF will be such, that it can be effectively reduced
only by full partition dividing the assets between the members. This may help where all the
members have not reached the maximum slab rate. There may be even instances where the
liability could become a small fraction of the former liability on partition. Where, however,
the largess of income is in respect of capital gains, on which a flat rate is applicable, a
partition would not help. But even in such a case, the sale of asset after partition may enable
the reinvestment benefit for such of those members, who do not have house, to avail of the
benefit of section 54F and even otherwise under section 54EA and 54 EB.9

Partial partition had helped multiple joint families, but with partial partition not being
possible, one can still have three interests, firstly, as a member of larger Hindu Undivided
Family with his son, secondly, with himself and his wife as smaller joint family after partition
with his son and thirdly his own individual assessment.

 Re-union

Reunion has been recognised as a legitimate step to bring back the former status of joint
family either by express or implicit agreement for reverting to the former status. The Hindu
law certainly permits the parties, who have affected partition, to reunite. Such an agreement

9
TAX PLANNING, pg 113-114, S. Rajaratnam & B.V Venkataramaiah, sixth edition, 2012-13, Bharat law
publication Jaipur
need not necessary be in writing. An oral agreement with clear intention of the parties to
reunite would bring back a joint family. The reunion is possible even among some of the
partitioned members. It is possible for any of the two or more member of the joint family to
come together as long as they bring back all the assets they had taken on partition.

Re-union unlike partition does not require recognition. It is possible both under Mitakashra
and Dayabagha. Even where the earlier partition is by a registered deed, there could be oral
reunion20. The reunion should be of noncontroversial character as mere the fact that the
parties live together after partitioned does not mean reunion.10

 Gift Tax Implication

In view of the perception of the Income-tax Department, that the abolition of gifts tax has
opened the door for tax evasion by routing unaccounted income as gifts, section 56(v) and
2(24)(xiii) have been inserted to treat gifts from non-relatives in excess of Rs 50000 as
income. It can be inferred that this measure is a substitute for gift-tax. Even bona fide gifts
from friend and nonrelative would be liable to tax as income of donee, while non-genuine
gifts from relative need not necessary be exempted, though they do not fall within the scope
of amendment, if they are not genuine. If they are not genuine, they cannot be treated as gifts
to relatives so as to qualify for exception in section 56(v). In fact, the amount received will
then be covered by section 68.

Gift of immovable property being it land or building or both, is received by an

individual/HUF. The immovable property is received without consideration which exceeds
the stamp duty value of the property by an amount exceeding Rs.50,000, then the amount of
stamp duty value will be liable to tax.

 Gift by HUF

In the case of R.C. Malpani v CIT11, the High Court was concerned with a gift of immovable
property by the Karta, where the joint family had minors whose interest were protected by
section 8(2) of Hindu minority and guardianship Act, 1956. The AO ignored the gift as void
and continues to assess the same in the hands of the joint family. The High Court held that it
10
Bhagwan Dayal v Reoti Devi, AIR 1962 SC 287.
11
(1995) 215 ITR 241 (Gau.)
was only a voidable gift and hence could not have been ignored. The issue had come up in
CWT v K.N. Shanmugasundaram12, where it was held that aggregation provision would have
no application in respect of gift of reasonable part of assets of joint family on customary
occasion of the unmarried daughter. Such gifts, it was pointed out, need not be only at the
time of marriage.

 Obligation to daughter and sister

As a Hindu father is legally obliged to get his daughter married, expenses in this behalf is not
a taxable gift13. Maintenance of sister is also a legal obligation14.

Drawbacks of HUF Setup:

1. A Hindu Undivided Family (HUF) is formed by design when one marries. But to be
documented by income tax officials, it should show some kind of money-spinning
asset and this can only be in the form of a gift from close kin or via a Will for every
HUF member.

12
(1998) 232 ITR 354 (SC).
13
CGT v B.S. Apparao, (2001) 248 ITR 103 (SC).
14
Guramma Bhartar Channabasappa Deshmukh v. Mallappa Channabasappa, AIR 1956 SC 510.
 2. Generally, the Karta of an HUF cannot gift or alienate HUF property, but he can make
certain gifts to the female members. Gift of immovable property within reasonable
limits, can also be made by a Karta to his wife, daughter, daughter-in-law or even to a
son out of natural love and affection. Gift of immovable property within reasonable
limits can be made only for dutiful purpose e.g. marriage of a daughter etc.
3. After a property gets apportioned to an HUF, every coparcener has equal right to it.
So, it is not transferrable and should be sold only if all the members agree to it.
Partition of HUF land has often led to clashes and court cases.
4. An HUF is not allowed to become an equal partner in any company. The Karta (head
of family) or even an HUF member is allowed to represent the HUF in an enterprise.
Women can also do that. But the income earned can be taxed as it falls under the
category of the ‘HUF income’.
5. Financing an HUF can be complicated. Resources can be brought in only via
inheritance or gift (conditional on gift tax laws - amount exceeding INR 50,000 from
non-family members is taxable).
6. If you form an HUF with the sole aim of saving on tax, it may work only in the
beginning. As the HUF strength escalates with passing years, technical hitches do too.
Also, if the income tax department gets wind of this, they might take action against
the HUF.
7. As HUF is purely an Indian phenomenon, it is not recognized in other countries. With
some members moving abroad for studies or job, the income assessment become a
challenge.
8. An HUF can be broken only if all the concerned party agrees to it.
9. Women cannot combine her separate assets with the property of the joint family.
10. HUF works only if you are earning a lot (high income level) from numerous sources.

Benefits of HUF System:

1. The first and the most obvious benefit of HUF is when you add up tax. Tax Planning
via HUF boosts the number of quantifiable units using the method of HUF partition.
 2. You can form different taxable units of HUF using the loopholes of will or gift. Any
asset or savings made, or insurance premium disbursed by the HUF is subtracted from
the net income for tax purpose.
3. You can agree or settle on a comfortable arrangement regarding partition while saving
on tax. For instance, if an HUF comprises of a Karta (father) and four adult sons and
they have two business units, a house and other miscellaneous income sources. If the
HUF members are not earning, then partition can be done by giving each enterprise to
two sons so that partition is impartial. This will significantly bring down tax liability.
4. A woman is part of her husband’s HUF as well as her father’s. Even though a woman
cannot start a separate account as the husband is the Karta, she can be the co-partner
in the HUF. The additional income earned by the woman cannot be added to this.
5. One can observe that the official stature of an HUF remains the same even in the
hands of women in the event of the demise of Karta or the last male member in the
family. Hence the ancestral or acquired assets of the HUF stays in the hands of the
widows and need not be partitioned.
6. The reason why a lot of families decide to form an HUF is because they can apply for
two pan cards and file taxes separately and personal incomes of members needn’t be
considered as the HUF income.
7. Thanks to many recent rulings, it is now accepted that there is no requirement for
nucleus or ancestral joint family assets for the HUF to exist.
8. Women in the family, if they want, can gift property in her name (or assets bought in
her name by herself or her natal family) can make a gift of towards the HUF.
9. HUF members find it easy to avail loans.

CONCLUSION
HUF is a separate entity for taxation under the provision of income tax act, which can have
its own income. This indicates that person may be assessed in two different capacities as an
individual and as a Karta of HUF. One can lower his tax liability by setting up a separate
entity HUF.

HUF enjoys the same tax benefit as an individual from the income tax slab. Basically, this
means no tax up to Rs. 2.5 lacs. HUF enjoys tax deductions under section 80c of Income Tax
up to Rs. 1.5 lacs for the investments made in PPF / Tax saving schemes. There are also
deductions available for medical insurance and other such standard deductions available to
any other individual. Note: PPF accounts cannot be opened in the name of HUF from 2006.

However, an HUF can contribute for PPF of its members and claim deduction HUF can also
give gifts to its members and the same is tax-free income in the hands of the members. Use of
HUF is the legal way to save taxes especially to high income earners. A penny saved is penny
earned.

Bibliography

Books consulted
  Balram Sangal and Jagdish Rai Goel: Direct Tax, Income Tax, Wealth Tax and Tax
Planning.
 Dr. V.K. Singhania: Students guide to Income-Tax.
 Girish Ahuja and Ravi Gupta Systematic Approach to Income tax, Service Tax
 J.K. Mittal: Law, Practice and Procedure of Service Tax.

Sites Referred

 www.lawbites.com
 www.lawcorner.com
 www.ipleaders.com

FACULTY OF LAW, JAMIA MILLIA ISLAMIA

 PROJECT ON TAX TREATMENT ON HINDU UNDIVIDED FAMILY

2018-2019

SUBMITTED BY SUBMITTED TO

NIKHIL KUMAR KIRAN BALA MAAM

B.A.LL.B (HONS) 6TH SEMESTER

ROLL NO- 37