SUHAS CHANDRA SEN, J. - (1.) THE following question of law has been referred to by the Tribunal under s. 256(1) of the IT Act: "Whether on the facts in the circumstances of the case, in view of the Supreme Court decision in CWT vs. Bishwanath Chatterjee 1976 CTR (SC) 260 : (1976) 103 ITR 536 (SC) and in particular, the Supreme Court's observations in (1970) 76 ITR 679 (SC) to the effect 'The doctrine of throwing into the common stock is a doctrine peculiar to the Mitakshara School of Hindu Law', the Tribunal's finding that the question whether the three brothers governed by the Dayabhaga School of Hindu Law could elect to form an HUF hotchpot was not a debatable proposition beyond the scope of s. 254(2) of the IT Act, 1961, was correct ?"
(2.) THE relevant assessment year is the asst. yr. 1976-77 for which the accounting period is the year ended 31st March, 1976. The facts as stated by the Tribunal are as under.
(3.) THE dispute relates to the income of the assessee from his interest in house at 74, Ashutosh Mukerjee Road, Calcutta. The property originally belonged to Lilabati Basu. After her death on 3rd Sept.,1966, the same devolved on her three sons including the assessee. The claim of the assessee was that the income from the property should be assessed in the hands of the family. The ITO rejected the claim on the ground that under the Dayabhaga School of Hindu Law, which was admittedly applicable to the assessee and his family, the assessee is deemed to be a co-owner having a definite interest therein. On appeal before the CIT(A), the assessee gave further details in regard to the ownership of the said property and its devolution upon him. The CIT(A) accepted the facts stated in the statement given to him on the ground that similar statement had been furnished to the ITO and he came to the conclusion that the property belonged to the HUF and should not be assessed in the individual hands of the assessee, by treating him as co-owner thereof.;