- (1.) This appeal by certificate has come before us as the question of law arising for decision is said to be of great importance. The facts giving rise to the appeal are quite simple and may be shortly stated.
(2.) One Bireswar Chatterjee, who was admittedly governed by the Dyabhaga School of Hindu law, was assessed to income-tax as an individual. He died intestate on January 7, 1957, leaving his widow, sons and daughters. The Wealth-tax Officer rejected their plea that on the death of Bireswar Chatterjee they held definite and determined shares in his properties and were liable to separate assessment, and assessed them as a Hindu undivided family for the assessment year 1958-59.On appeal, the Appellate Assistant Commissioner held that since the assessee was governed by the Dayabhaga School of Hindu law, the properties could not belong to the Hindu undivided family and were to be taxed "in the hands of the co-sharers separately." The department took an appeal to the Income-tax Appellate Tribunal, 'B' Bench, Calcutta. There was difference of opinion between the members of the Tribunal, and in accordance with the opinion of the majority of the members it was ordered that "notwithstanding that there was no unity of ownership amongst members governed by the Dayabhaga School of Hindu law in respect of the family property and each member thereof had indefinite shares in it, such property, until partitioned, was assessable to wealth-tax in the heads of the Hindu undivided family." The Tribunal however referred the following question of law to the Calcutta High Court for decision. - "Whether on the facts and in circumstances of the case, the Tribunal was right in holding that properties possessed jointly by the members governed by the Dayabhaga School of Hindu law were assessable to wealth-tax jointly in the status of a Hindu undivided family - The High Court accepted the contention that the question assumed that the property was owned jointly by the members of a Hindu undivided family governed by the Dayabhaga School of Hindu law, and reformed it as follows,- "Whether on the facts and in the circumstances of the case, the Tribunal was right in holding that the properties possessed by the heirs of a Hindu male governed by the Dayabhaga School of Hindu law were assessable to wealth-tax jointly in the status of a Hindu undivided family - It took the view that the matter was covered by its earlier decisions including Commr. of Wealth-tax, West Bengal v. Gouri Shankar Bhar, (1968) 68 ITR 345 (Cal) where it had been held that on the death intestate of a Dayabhaga male, his heirs do not inherit his estate as members of a Hindu undivided family, and remain as co-owners with definite and ascertained shares in the properties left by the deceased unless they voluntarily decide to live as members of a joint family. The High Court also took notice of the fact that a suit for partition had been filed and a preliminary decree had been obtained on July 4,1959, and answered the reframed question in the negative. As has been stated, the High Court has certified this to be a fit case for appeal to this Court.
(3.) Mr. S. T. Desai appearing for the Commissioner of Wealth-tax has challenged the view taken by the High Court and has argued that under the Dayabhaga School of Hindu law the property left by the father is taken by the sons jointly by descent, as coparceners, as their joint family comes into existence by operation of law. He has accordingly argued that the father's property is liable to be taxed under Section 3 of the Wealth-tax Act, hereinafter referred to as the Act, as a unit until it is partitioned amongst its members by metes and bounds. Reference has in this connection been made to certain commentaries and judgments and we shall refer to them as and when necessary.;