R.K. Agrawal, J. - (1.) THE Income-tax Appellate Tribunal, Allahabad Bench, Allahabad, has referred the following questions of law under Section 256(1) of the Income-tax Act, 1961, for the opinion of this court : "Whether, on the facts and the circumstances of the case, the Tribunal was legally correct in holding that income from house property at Plot No. 8, Kandhari Road, Agra, which was claimed by the assessee to have been thrown in the common hotchpot as per declaration made in the return for the assessment year 1968-69 and reiterated in the return for the assessment year 1972-73 onwards, was not liable to be excluded from individual assessment of the applicant ?"
(2.) THE aforementioned question of law is said to arise out of the order of the Income-tax Appellate Tribunal dated November 30, 1978, passed in ITA Nos. 1847 and 843 (Alld.) of 1976-77 relating to the assessment years 1973-74 and 1974-75. The facts giving rise to the aforesaid reference is set out below : The assessee is an individual and derives income from salary. In the return of income for the assessment years in question i.e., 1973-74 and 1974-75, the assessee had shown his income from salary. However, in the said returns he did not show income from the house property situated at 8, Kandhari Road, Agra, on the ground that he had thrown the said property into the common hotchpot of the Hindu undivided family consisting of himself, two sons and three daughters as was evidenced in the return of income filed for the assessment year 1968-69. The Income-tax Officer did not accept the plea of the assessee and taking into account the fact that income from the said property was included in the total income of the assessee for the assessment years 1968-69 to 1971-72, he once again included the income from that property in the total income of the assessee in each of the two years under reference. The Appellate Assistant Commissioner before whom the assessee had preferred appeals had upheld the action taken by the Income-tax Officer. Further appeal to the Tribunal also failed.
(3.) WE have heard Sri Vikram Gulati, learned counsel for the applicant-assessee, and Sri Shambhu Chopra, learned additional standing counsel appearing for the Commissioner of Income-tax, U. P. Lucknow. It may be mentioned here that the Tribunal had found that the land on which the property was constructed was purchased out of the investment of the assessee and not out of the funds of the Hindu undivided family. Further it found that when the claim of the assessee that the property has been thrown by him in common hotchpot of the Hindu undivided family in the assessment year 1968-69 was rejected by the Income-tax Officer, the assessee did not agitate the issue any further and had accepted the same. Moreover, the assessee had voluntarily included the income of the aforesaid house property in his return as belonging to him for the assessment years 1968-69 to 1971-72. Even though the assessee had filed revision applications before the Commissioner of Income-tax under Section 264 of the Act, for the assessment years 1969-70 to 1971-72, but the assessee did not challenge the order of the Commissioner of Income-tax, rejecting his revision for the assessment years 1969-70 and 1970-71 on the ground of limitation and for the assessment year 1971-72 on the merits any further and he accepted the decision of the Commissioner. Thus, up to the assessment year 1971-72, the assessee had treated the income from house property as his own income. There was no fresh declaration of throwing the house property in the common hotchpot for the assessment years in question and, therefore, it came to the conclusion that there is no fresh material for the assessment years under consideration on the basis of which it can be held that the property in question belongs to the Hindu undivided family.;