V.G. Oak, C.J. - (1.) THE Income-tax Appellate Tribunal, Allahabad, has referred the following question to this court: "Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that there was no partial partition in the assessee's family, and the income earned from the business previously carried on by the assessee Hindu undivided family continued to be the income of the Hindu undivided family after 17th of August, 1955 ? "
(2.) MESSRS. Sheo Narain Dalichand is the assessee. This is a Hindu undivided family. The year of assessment is 1956-57. The accounting period was the financial year ending on 31st March, 1956. The assessee submitted a return on the footing that there had been a partial partition in the family on 17th August, 1955. Under the partial partition, retail business and halwai business were taken over by two branches of the family. The wholesale businees of the family was taken over by a firm consisting of four partners, Sheo Narain, Jagram, Hargovind and Pragdas. These four persons were sons of Dulichand deceased. A deed of agreement was drawn up on 20th August, 1955, embodying the terms of the partial partition dated 17th August, 1955. A deed of partnership was prepared on 16th July, 1956. The assessee, therefore, urged that the wholesale business carried on by the firm after 17th August, 1955, could not be treated as the business of the assessee family. This contention of the assessee was not accepted by the Income-tax Officer. He rejected the assessee's case of partial partition. Assessment was made on the footing that there had been no partial partition as alleged. Successive appeals of the assessee were dismissed by the Appellate Assistant Commissioner and by the Income-tax Appellate Tribunal, Allahabad. At the instance of the assessee, the Tribunal has referred to this court the question quoted above. Whether there was partial partition or not is a question of fact. That question of fact cannot be referred by the Tribunal to this court. Mr. P. N. Pachauri, appearing for the assessee, however, urged before us that the contention of the assessee has been that there was no material before the Tribunal for holding that there was no partial partition, and the finding of the Tribunal is perverse. In Oriental Investment Co. Ltd. v. Commissioner of Income-tax, [1957] 32 I.T.R. 664(S.C.) it was explained by the Supreme Court on page 675 that a finding on a question of fact is open to attack under Section 66(1) of the Indian Income-tax Act, 1922, as erroneous in law when there is no evidence to support it or if it is perverse. It is, therefore, necessary to reframe the question referred by the Tribunal. The proper question for consideration of this court would be: " Whether, on the facts and in the circumstances of the case, the findings of the Tribunal that there was no partial partition in the assessee family, and that the income earned from the business previously carried on by the assessee Hindu undivided family continued to be the income of the Hindu undivided family after 17th August, 1955, are legally sustainable ?"
(3.) WE proceed to answer the question as reframed by us. In support of its case of partial partition, the assessee produced the following evidence before the Income-tax Officer : (1) the partnership deed dated 16th July, 1956 ; (2) the agreement dated 20th August, 1955 ; (3) affidavits of Jagram, Pragdas, Jagdish Narain and Hargovind ; (4) statements of Sheo Narain and his three brothers; and (5) statements of two persons, Roshan Lal Soni and Beni Madho on the question of execution of the agreement and the deed of partnership. ;