• Division of HUF property

Our father,karta of HUF,passed away in 2002.In 2015 we,the coparceners entered into a partnership deed and between 2 brothers and 5 sisters amicably partioned the properties.While partioning the properties we,two brothers, created our respective HUFs.The properties assigned to us are in joint names of the 2HUFs.Now if we partition our respective HUFs and apportion shares between the members of the HUFs will the shares have the character of HUF or will they be deemed to be selfacquired?The query being raised will have tax implications.If it is construed as non-HUF then each member can invest Rs.50 Lakhs to avail benefit under Long-term Capital Gain otherwise the 2 HUFs will be considered as two legal persons and be entitled to a ceiling of Rs.50 lakhs each.In our case the CG will be a very substantial amount.Each HUF has karta and 2 coparceners making a total of six shares.Can the wives of the kartas be shareholders in the HUF?
Asked 7 years ago in Property Law
Religion: Hindu

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9 Answers

It will be nature of the self acquired property after partition. Since you have inherited same in HUF there won't be any tax implication on partition of HUF.  

As per section 47 of the Income Tax Act, no capital gains shall arise to the HUF on distribution of assets on partition of HUF.

As per section 49(1) of Income Tax Act, where assets are distributed on partition of HUF, then the cost of acquisition of such assets to the member shall be the cost of acquisition of such assets in the hands of HUF. Period of holding of asset in hands of HUF shall be considered in hands of member. As per section 171 of the Income Tax Act partition of HUF takes place on the date the properties are actually physically divided. There must be physical division of the properties. Physical division of income without physical division of properties does not amount to partition.

 

Shubham Jhajharia
Advocate, Ahmedabad
25513 Answers
179 Consultations

HUF is composed of the karta and sons and daughters

The HUF of each brother is entitled to 1/2 undivided share in the property which was assigned to them on partition

So now if the HUF property is being sold then the share coming in the hands of each member/coparcenor under both the HUF will be considered his/her self acquired property 

Capital gains tax will arise only when such share coming in the hands of the coparcenors is sold by them

mere allocating the duly divided portion out of the coparcenary property, to the coparcenor members will not be considered as sale of property which attracts capital gains tax

the coparcenor members were already having their respective undivided shares in the HUF property. On partition only the form of the property changes - i.e. from undivided to divided/partitioned as per their respective shares

so in my opinion no capital gains tax would arise on partition of HUF property 

It will arise only when such a share so allocated on partition is sold by the coparcenor

the wives of the kartas are not coparcenors. So if on partition they are given certain share then it will be considered as gift, on which again there would be no capital gains tax, as there is no sale happening 

Yusuf Rampurawala
Advocate, Mumbai
7899 Answers
79 Consultations

Dear Client,

It will consider their personal property. LTCG exception will avail in individual names. Wife is only a members of  HUF but not as coparceners. Therefore, cannot become karta but shareholder.

Yogendra Singh Rajawat
Advocate, Jaipur
23079 Answers
31 Consultations

If it`s single HUF still on its partition, same position, self acquired property of each member. 2 HUF than 1/7th 1/7th will distribute in two families. .

Yogendra Singh Rajawat
Advocate, Jaipur
23079 Answers
31 Consultations

Sir of you sell the property after partition through court order or registered partition deed then on sale of each share each of you shall get benifit of capital gain that is 50 lakh 

Shubham Jhajharia
Advocate, Ahmedabad
25513 Answers
179 Consultations

Yes whatever share that comes to the hands of each coparcenor will be considered his/her self acquired property which when sold will attract capital gains tax which can be saved by investing sale proceeds either u/s 54 or 54EC of IT Act

For now consider the 2/7th share which both HUFs are holding as one single entity

This can be partitioned into 2 branches such that each HUF gets 1/7th share

The 1/7th share can then in turn be divided between the 3 coparcenors of the HUF equally

This partitioned share when sold will then attract CGT. However what would be the holding period of this share will have to be further researched to determine whether the CGT is short term or long term

In my opinion it should be long term gains. The previous undivided share takes the form of the divided share. Thus holding period can be taken as more than 3 years entitling you to avail LTCG tax exemption 

Yusuf Rampurawala
Advocate, Mumbai
7899 Answers
79 Consultations

1) If you go as per HUF procedure it will benefit each of you in tax.

Ganesh Kadam
Advocate, Pune
13008 Answers
267 Consultations

After partitioning the original HUF properties, two brothers alone have formed two different HUFs towards the proeprties they inherited.

Now upon formation of a separate HUF, the coparceners are entitled to a legitimate share in it. 

There is no question of LTCG or short term capital gains in the partitioned properties.

The wives of the karta can be members of the HUF property and not coparceners.

 

 

T Kalaiselvan
Advocate, Vellore
89977 Answers
2492 Consultations

By partition there is no taxes need to be paid towards the properties allotted 

The  long or short term capital gains taxes need to be paid only when the partitioned properties are sold.

 

T Kalaiselvan
Advocate, Vellore
89977 Answers
2492 Consultations

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