Shukla, J. - (1.)THE Income-tax Appellate Tribunal, Indore Bench, has drawn up a statement of the case and referred to the High Court for decision the following questions of law :
" 1. Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the income of the so-called HUF consisting of the assessee and his wife was liable to be assessed in the hands of Shri Shrivallabhdas, as an individual, and not in the hands of that HUF.

2. Whether the property which devolved on Shri Shrivallabhdas on the death of his father, Gokalchand, also constituted the HUF property consisting of his own branch including his sons.

(2.)FACTS of the case, as stated by the Tribunal, are as follows : Assessment year in question is 1974-75. Assessee Shrivallabhdas Modani, originally represented his HUF, consisting of himself, his wife, sons and unmarried daughters (for reference "the bigger HUF"). In 1962 there was a partition of the family property between Shrivallabhdas Modani and his sons. After the said partition Shrivallabhdas Modani, his wife and unmarried daughters constituted an HUF, hereinafter described as " the smaller HUF". After partition in the year 1962 the assessee, Shrivallabhdas, representing the smaller HUF, invested the property received on partition, in the firm, M/s. Shrivallabhdas Govinddas. The share of profits received by the assessee, Shrivallabhdas, was assessed in the status of an HUF for some time. The assessee, Shrivallabhdas Modani, also owned some self-acquired property in respect of which he was assessed in the status of an "individual".
A new situation arose when in the year 1968 Shri Gokalchand, father of the assessee, Shrivallabhdas Modani, expired. Late Shri Gokalchand left some property. The assessee, Shrivallabhdas Modani, claimed that he had succeeded to his father's property but later he blended the same into the common hotchpot of the erstwhile HUF consisting of himself, his wife and sons. The property which passed on to the assessee, Shrivallabhdas Modani, after the death of his father was invested as capital in the firm, M/s. Gokalchand Modani & Sons. Shrivallabhdas Modani filed a return for this income in the status of an HUF (the bigger HUF). In this way, the assessee claimed to be assessed in respect of his income from three different items of property in three different status, i.e., as " individual ", as "HUF (smaller) " and as " HUF (bigger) ".

The ITO held that assessee, Shrivallabhdas Modani, could not constitute an HUF (smaller HUF) with his wife and unmarried daughters and, therefore, his income from the firm, M/s. Shrivallabhdas Govinddass was also liable to be assessed in his status as " individual ". The ITO further held that Shrivallabhdas Modani could not blend the property, to which he succeeded after his father's death, with the property of the bigger HUF consisting of himself and his sons because after the partition of 1962 the coparcenary had come to an end and it could not be re-created. Accordingly, the income from M/s. Gokalchand Modani & Sons was assessed in the hands of the assessee treating his status as " individual ".

(3.)ON appeal, the AAC modified the assessment order holding that after partition between Shrivallabhdas and his sons in the year 1962, Shrivallabhdas, his wife and unmarried daughters constituted a smaller HUF and the income of the firm, M/s. Shrivallabhdas Govinddas, should have been assessed in the hands of the smaller HUF consisting of Shrivallabhdas Modani, his wife and unmarried daughters. Accordingly, he held that the income earned by the smaller HUF could not be included in the income of Shrivallabhdas Modani earned by him in his individual capacity. ON the second question regarding the throwing of the property into the common stock, the AAC upheld the finding of the ITO that after the complete partition in 1962, the coparcenary consisting of Shrivallabhdas Modani and his sons had come to an end and the assessee could not blend any property received by him in succession with the property which was held earlier by the bigger HUF.
Against this order the assessee as well as the Department came in appeal before the Appellate Tribunal. The Appellate Tribunal dismissed the assessee's appeal and allowed that of the Department thus restoring the order of the ITO assessing the entire income returned by the assessee as his income in the status of an " individual ".