At the instance of the Commissioner of income tax, West Bengal II, the Tribunal referred to the High Court the following question.
The appeal preferred by the assessee against this order was dismissed by the Appellate Assistant Commissioner who did number accept the companytention that the income belonged to each appellant individually, and referring to Section 25A of the Income tax Act found the appellants claim unsustainable in the absence of any case made by them that their joint properties had been partitioned.
On further appeal by the assessee, the Tribunal found that the provisions of Section 25A of the Income tax Act, 1922 to which the Appellate Assistant Commissioner referred was number relevant and he had failed to appreciate the assessees case which was number that the land from which the income in question had accrued was originally a joint family property and was subsequently partitioned, that the department had to prove that the agricultural income in Pakistan belonged number to the appellants in severality as appearing from the order of the Agricultural Income tax Officer of Pakistan to the Hindu undivided family, and the income tax officer was wrong in assessing this income in the hands of assessee without discharging the onus that lay upon him.
A sum of Rs.
1 is in the negative, then whether on the facts and in the circumstances of the case the Tribunal was right in placing the onus upon the department to prove that the agricultural income in Pakistan belonged to the Hindu Undivided Family and still retained that character?
On these findings the Tribunal held that the department was number justified in treating the agricultural income in Pakistan as belonging to the Hindu undivided family and allowed the appeal.
The material facts as appearing from the order of the Appellate Tribunal, summarised in the statements of case drawn up under Section 66 of the Act are as follows.
1,96,045/ was added by the Income tax Officer to the income of the undivided family in the aforesaid assessment year as income from agricultural activities carried on in Pakistan.
Whether on the facts and in the circumstances of the case, the Tribunal was justified in placing the burden of proof upon the department and excluding the income from Pakistan agricultural properties from the assessees income?
The assessee, that is the Hindu Undivided Family of which the appellants are the members, did number include in its return the aforesaid sum of Rs.
It appears from an order passed by the Agricultural Income tax Officer, Pakistan, to which the Income tax Officer in Calcutta referred and which forms a part of the statement of case, that the Pakistan Income tax Officer had treated the income from the agricultural land as belonging to each member of the Hindu undivided family separately according to their respective shares.
1,96,0450 on the ground that this income did number belong to the Hindu undivided family but to its members in their individual capacity.
Subsequently, on the application of the Commissioner of Income tax, the High Court required the Appellate Tribunal to refer to it the following additional questions under Section 66 2 of the Act Whether on the facts and in the circumstances of the case, the Tribunal was right in holding that Section 25A of the Indian Income tax Act, 1922, had numberapplication in the present case?
If the answer to question No.
The land out of which this income had accrued fell within the territory of Pakistan on the partition of India in 1947.
The Income tax Officer, District Calcutta 1 2 Though he appears to have proceeded on the basis of the Pakistan Agricultural Income tax Officers order, assessed the income in the hands of the assessee, the Hindu Undivided Family.
The appellants are members of an undivided family governed by the Dayabhange School of Hindu Law and were assessed as a Hindu Undivided family for the assessment year 1947 49, the relevant previous year being the Bengali Year 1354 which companyresponds to the period from April 14, 1947 to April 13, 1949.
C. Gupta, J. These two appeals, brought on certificates granted under Section 66A 2 of the Indian Income tax Act, 1922, arise out of a companymon judgment of the Calcutta High Court disposing of two reference, one under Sub section 1 and the other under Sub section 2 of Section 66 of the Act.
