MALIK, J. - (1.) THIS case has been referred to this Court under Section 66(1) of the Indian Income-tax Act, 1922, for an answer to the following question : "Does the circumstance that the property held jointly by Baij Nath group and another group of the family has not been divided in definite portions stand in the way of the family has not been divided in definite portions stand in the way of the appellant in obtaining an order under Section 25A (1) in view of the fact that the property has hitherto been treated as the property of a Hindu undivided family composed of both the above mentioned groups."
(2.) THE facts which have given rise to the above question are that the assessee Baij Nath was assessed under the style of Amba Prasad Baij Nath as a Hindu undivided family from the year 1931-32 without any objection. During the assessment year 1938-39 Baij Nath claimed that he had been assessed wrongly as a member of a joint Hindu family and that he was and had been, as a matter of fact, separate from his nephews, the sons of Amba Prasad. His claim was, however, rejected and he was continued to be assessed in the years 1938-39, 1939-40 and 1940-41 as a member of the joint Hindu family. During the assessment year 1941-42 he again raised the same plea and filed an application under Section 25A of the Indian Income-tax Act, 1922. In that application he mentioned that he was not a member Panna Lal and Hira Lal who were the sons of Amba Prasad, that he had never been a member of a Hindu undivided family with them and that the assessment therefore "should be separate on the applicant along with his son". This plea was rejected by the Additional Income-tax Officer who held that under Section 25A (3) the assessment must continue to be made as a Hindu undivided family unless an order under Section 25A(1) was passed and the Income-tax Officer was satisfied that the joint family property had been partitioned among the various members or groups of members in definite portions. The Income-tax Officer, however, held that the entire joint family property had not been partitioned and there had been therefore no partition within the meaning of Section 25A of the Income-tax Act. This matter was in due course taken to the Income-tax Appellate Tribunal who dismissed the appeal by an order dated the 20th July, 1942. The assessee then applied under Section 66(1) of the Act for a reference to this Court and formulated several points of law which are set out in his application. The Commissioner of Income-tax objected to the reference on the ground that the application did not raise any question of law and the only question was a question of fact whether the Hindu family was divided or not and he, therefore, submitted that no reference should be made. The Appellate Tribunal, however, granted the application and has made a reference to this Court for an answer to the question formulated by it which we have set out above.
(3.) AFTER having gone through the statement of the case and having heard counsel for the parties we are not satisfied that the statements in the case are sufficient to enable us to determine the question raised thereby and we are, therefore, compelled to refer the case back to the Appellate Tribunal who would clearly formulate the findings of fact on which the question of law referred to this Court for answer arises and, if necessary, reframe the question. Section 25A refers to a case where a member of a Hindu family hitherto assessed as undivided applies to the Income-tax Officer, at the time of making an assessment under Section 23, that the partition has taken place among the members of such family and therefore the family should no longer be treated as a Hindu undivided family. Sub-section (1) of Section 25A lays down that when such an application is made, the Income-tax Officer shall make enquiries and if he is satisfied that the joint family property has been partitioned among the various members or groups of members in definite portions he shall record an order to that effect and so long as such an order has not been recorded the assessee, who has been assessed as a Hindu undivided family, must continue to be so assessed in spite of the fact that there may have been a division of status [see Section 25A (3)].;