- (1.) THE Tribunal, Allahabad has referred the following question stated to be of law and to arise out of its order dt. 17th Dec., 1979 passed in ITA Nos. 295 and 296 of 1979 for the asst. yrs. 1975-76 and 1976-77: "Whether on the facts and in the circumstances of the case, the income from the house property in question could not be included in the total income of the assessee individual in each of the years under reference?" We have heard Sri Shekhar Srivastava, Standing Counsel on behalf of the Department. None has appeared on behalf of the assessee.
(2.) FOR the assessment years under reference, the assessee filed two sets of returns, one in the status of individual and the other in the status of HUF, consisting of himself as Karta, his wife and minor children. In the returns filed in the status of HUF, income from certain house property was declared. The ITO assessed the income from house property in the case of the HUF as a protective measure and for the reasons given in the orders holding that the house property belonged to the assessee (individual), he assessed the income from house property in the individual assessment. The assessee preferred appeals before the AAC contending that since the income from the house property belonged to the HUF the same should not have been included in his total income as an individual. The AAC dismissed the appeals of the assessee by orders dt. 4th Dec., 1978. Being aggrieved by the orders of the AAC the assessee preferred appeals before the Tribunal. The Tribunal has disposed of the appeals in the following manner : "Heard the learned counsel for the assessee Shri M.H. Singhal and the learned authorised representative of the Department Shri Sheo Prasad. In this case, we have noted that the assessee has not challenged the findings given by the ITO in respect of his HUF assessment. Thus, if the assessment in the case of HUF has not been challenged by the assessee and he has accepted the same even on protective basis, the question of further adding the same to the income of the individual will not arise as if the ITO was not satisfied with the plea of the assessee he should have treated the HUF as an AOP but since he failed to do the same, we consider it reasonable to hold that there was no justification on the part of the authorities below to have added back the income from property to the income of the individual also. In this view of the matter, we delete the additions in both the years under consideration and allow the appeals filed by the assessee". It is evident that the Tribunal did not enter into the question as to whether the income from the house property was liable to be assessed as the income of the assessee in his individual capacity. The finding of the learned Tribunal that since the income had been included in the income of the HUF on protective basis and since the assessee did not prefer appeal against that assessment in HUF capacity, the question of further adding the same to the income of the assessee did not arise and is erroneous. In view of the fact that the Tribunal is the last fact-finding body, it should have, while reversing the order of the AAC examined the facts in full details and could exclude the income only if it found that the property in question was not owned by the assessee (individual). Since the Tribunal has not recorded any such finding of fact, the question as referred cannot be answered. Accordingly, we set aside the order dt. 17th Dec., 1979 and direct the Tribunal to redecide the appeals of the assessee on this point after giving the parties an opportunity of being heard.;