- (1.) THE Income Tax Appellate Tribunal, Allahabad, has referred the following question of law under section 27(1) of the Wealth Tax Act, 1957, hereinafter, referred to as 'the Act', for opinion to this Court: - 'Whether on the facts and in the circumstances of the case, the Income tax Appellate Tribunal was justified in holding that the assessee HUF should be assessed at the rates applicable to an unspecified HUF and not at the higher rates applicable to a specified HUF ?'
(2.) THE reference relates to the assessment year 1980 -81. The respondent assessee is HUF consisting of three brothers. In the year 1983, there was partition of the HUF, as a result of which, only immovable properties were left with the assessee family and the other assets were divided. In respect of the partitioned assets, the members of the assessee HUF were assessed as smaller HUFs. Before the Wealth -tax Officer, it was claimed that since none of the members of the respondent had wealth above the taxable limit of Rs. 1.5 lakhs in the assessment year 1980 -81, it should be taxed at the rate applicable to an unspecified HUF under clause (1) of Part I of Schedule 1 of the Act. The Wealth -tax Officer did not accept the claim and taxed the HUF at the rate applicable for specified HUF under clause (ii) of Part I of Schedule I of the Act. In the appeal, the Appellate Assistant Commissioner, while allowing the appeal directed the Wealth -tax Officer to tax as unspecified HUF The revenue's appeal before the Tribunal has failed. We have heard Shri A.N. Mahajan, learned counsel for the applicant. Nobody has appeared on behalf of the respondent. Learned counsel for the revenue very fairly stated that the controversy in the present reference is clearly covered by the decision of this court for the assessment year 1975 -76 which is inter parties. The decision is in CIT v. Beni Ram Banshi Dhar : [1997]226ITR857(All) . This court has held that: 'From a perusal of sub -paragraph 11, it is manifest that the emphasis is on the income of individual member and not of a smaller Hindu undivided family. In the case at hand not the income of an individual member but of a smaller Hindu undivided family exceeds the prescribed limit and, therefore, we are of the view that the Appellate Tribunal was right in holding that for the purposes of taxation not the income of a smaller Hindu undivided family but the income of an individual member of the bigger Hindu undivided family has to be taken into consideration and the income of any individual member of the assessee -Hindu undivided family not being in excess of the prescribed limit, a higher rate applicable in the case of a smaller Hindu undivided family cannot be applied to the assessee -Hindu undivided family.' (p. 859) Thus, respectfully following the above decision, we answer the abovementioned question of law in the affirmative, i.e., in favour of the assessee and against the revenue. However, there shall be no order as to costs. ;