V.BHARGAVA C. J - (1.)IN compliance with an order made by this court under section 66(2) of the INcome-tax Act, a statement of the case has been submitted by the INcome-tax Appellate Tribunal to this court referring the following four questions for our opinion :
(1) Whether there is any material to justify the inference that the income from managing agency commission and allowance from Mewar Textile Mills Ltd., Bhilwara, was the income of the Hindu undivided family and not that of Seth Sobhagmal Lodh ?

(2) Whether, on the facts and in the circumstances of the case, a previous year different from the Diwali year could be adopted in respect of the income from the managing agency commission and allowance subject to tax on (a) accrual basis and (b) receipt basis ?

(3) Whether the amount said to have been received in British INdia in the previous year could be treated as income accruing or arising without British INdia in the same year and whether under section 4(1)(b)(iii) such amounts could be treated as assessable income for the assessment yea ? and

(4) Whether the sums of Rs. 2,48,341 and Rs. 2,39,070 were rightly treated as received by the assessee in British INdia within the meaning of sections 4(1) and 14(2)(c) of the INcome-tax Ac ?

(2.)THIS reference relates to the assessment year 1944-45.
For this assessment year, two different previous years have been taken into account. In respect of income from commission and salary receivable from Mewar Textile Mills Ltd., Bhilwara, the previous year has been taken to be the calender 1943; while for other sources of income the previous year of the assessee is the Diwali year corresponding to 8th November, 1942, to 21st October, 1943. The assessee is a Hindu undivided family represented by Sobhagmal Lodha as karta of the family. The business of the family was carried on under the name of Messrs. Umed Mal Abhaymal with head office at Ajmer and branches at Bombay, Calcutta, Delhi, Kotah, Jaipur and Kishangarh. Certain income accrued in Bhilwara which at the relevant time was not a part of the taxable territories under the Indian Income-tax Act. The amounts which came up for consideration were three; the first amount was a sum of Rs. 2,39,070 received as commission and salary in respect of the calendar year 1942. There was a second sum of Rs. 2,48,341 received as dividend income at Bhilwara. Both these sums have been assessed as income of the Hindu undivided family which accrued or arose outside the taxable territories and which were brought later or received into the taxable territories during the months of May and June 1943. Out of these amounts, a sum of Rs. 2,39,070 received as commission and salary for the year 1942 was claimed by Sobhagmal Lodha to be his individual income and not income of the Hindu undivided family of which he was the karta. This claim was rejected by the Income-tax Appellate Tribunal and the income was held to belong to the Hindu undivided family. The plea of the assessee that these two sums were not brought into or received in the taxable territories was also rejected and they were subjected to tax. In accordance with the finding of the Income-tax Appellate Tribunal, there was a third sum of Rs. 3,48,080 which accrued as commission and salary for the calendar year 1943. It was held that this income accrued or arose during the calendar year 1943 and was therefore taxable in the assessment year in question as income of the Hindu undivided family. On behalf of the assessee it was contended that, since for his business the previous year was the Diwali year from 8th November, to 21st October, 1943, even in respect of this income from commission and salary the previous year should have been held to be identical with it, and that it was not open to the income-tax authorities to take the previous year for this income as the calendar year 1943. These contentions of the assessee were also rejected. It is in these circumstances that the four questions reproduced above have been referred for our opinion.

So far as the first question is concerned, the appellate order of the Income-tax Appellate Tribunal shows that the following facts and material were found by the Tribunal.

[His Lordship stated the facts and material and continue :]

(3.)IN these circumstances, the first question is answered in the affirmative and against the assessee.
So far as the second question is concerned, it relates to taking different years for different items of income of the assessee. The dividend income, and it appears other business income of the assessee, is being taxed on the basis that the previous year is Diwali Year while the commission and the salary income have been assessed on the basis of the previous year being the calendar year. It was never disputed by the assessee that, for all other sources of income, except commission and salary, the previous year of the assessee was the Diwali year. The assessee only disputed the right of the income-tax department to treat the calendar year as the previous year for the income from commission and salary. It was urged by learned counsel for the assessee before us that the income from commission and salary should be treated as income from the same source from which the assessee was earning other income in respect of which the previous year was the Diwali year, because all the income was from the source of business. The argument is not correct. Business as such is not treated under the Income-tax Act as a source of income but it is classified as one of the heads of income enumerated in section 6 of the act. Within the same head of income, there can be various sources and section 2(11) defines the previous year with reference to sources of income and not heads of income. Under the same head there can be two sources, as an example, there may be different businesses each of the which would provide a different source of income and it is always open to an assessee to have one previous year for one business and another previous year for the second business even though both the sources may fall under the same head of business. This is how the law now clearly stands after its amendment in the year 1939. It does not appear to be necessary for us to cite any decisions in support of our view because the language used in section 2(11) is itself clear and quite distinct from the language used in section 6 and a clear distinction is made between a source of income and head of income.