• Capital Gains if any, arising out gifting HUF property-

I am owning HUF Inherited Agricultural lands and filing IT returns from time to time as KARTHA in compliance with the law. 
Our HUF cosist of my self, my wife & two sons, now with their respective families.

In the year 1987-88, we have purchased a residential site in Bangalore using accumalated HUF Funds and allowed to be registered in the name of my wife who is also a member of HUF. Investment on this property is shown in HUF Income Tax returns from time to time. 

My both sons were minors at that time the said property registration. My wife was neither having any employment for earning nor any source of income of her own at the time of registration of property.

Now after over 25 years of possession of scheduled property shown in HUF IT returns, it has come to our notice that my wife has executed irrevocable Gift Deed in favour of her Brother living in Bangalore in the year 2009 citing 
reasons of her love and affection. She has not taken consent of other members of HUF ie.. me & my sons who were majors by that time. None of us from HUF have given cosenting witness signatures before the Sub-registrar. She has handed over all papers with possession and her  Donee brother has accepted the GIFT as per the Gift Deed. Value of the property is shown as nil but for the purpose of registration fee is shown as Rs. 1120/- only.

Registered value of Residential site in the year: 1989 is Rs.55,000/-
Market Value when the gift deed executed in the year 2009 was around 1,20,00,000/- (approx)

In this regard, please advice me on the following:

1. Whether this GIFT  by my  wife in HUF eligible for  exemptions from payment of any Income Tax including Capital Gains for the period from the date of possession to date of handing over possession as Gift? 
2. Proceedure to delete the property from the HUF IT returns since the AY:2009-10.
3. Whether such transaction attract Capital Gains with interest and penalty from the 
   date of possession till the date of handing over the possession as gift to my wife's brother?
4. What could be the Tax liability if any, on the above value?
5. What other actions may have to face by the HUF and copparceners individually in such a situation?
Asked 3 years ago in Taxation from Bangalore, Karnataka
1. It is not clear whether income from such HUF property was shown as income of your wife in her income tax return or in the HUF income tax return? Such gift without the consent of other members of the HUF is not valid in the eyes of law since the investment to that property was made by the HUF. Therefore, the gift is not eligible for exemptions since as per law, the gift is not recognized by the HUF.
2. you would need to consult a practicing CA to know the procedure for deleting the property
3. Capital gains would depend upon the gift having been valid or not. so please seek advice from your CA on this point.
 4.gifts to and from the relatives are exempt from tax
5. a suit for partition or a suit for declaration challenging the gift deed can be filed by the coparcerns since the property has been disposed off without the consent of all other members of the HUF
Shaveta Sanghi
Advocate, Panchkula
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