Suhas Chandra Sen, J. - (1.) The Tribunal has referred the following question of law under Section 256(1) of the Income-tax Act, 1961 : "Whether, on the facts and in the circumstances of the case and the provisions of Section 64 of the Income-tax Act, 1961, the Tribunal is correct in holding that the interest and dividend income of Rs. 39,414 cannot be included in the hands of the assessee ?"
(2.) The relevant facts as found by the Tribunal have been stated in paragraph 1 of the order of the Tribunal, which are as under : "There was a partial partition and the assessee got 3,010 shares of the said firm which included 2,660 shares which he had thrown into the hotchpotch. The assessee's contention was that he had received these shares in a different capacity, i.e., as karta of the smaller HUF consisting of himself, his wife and children. The Income-tax Officer, however, was of the view that Section 64(2)(c) was clearly attracted because the converted property after partition yielded income to the assessee, his spouse and minor children. During the earlier accounting year, the assessee sold these shares for Rs. 8,13,000 and utilised the sale proceeds for purchasing fixed deposits and making other investments. The Income-tax Officer, however, held that this did not affect the legal position of the taxability of the income arising out of the investments thus made because the word 'property' in the Explanation to Section 64(2) included converted property also. He, therefore, added the interest and dividend income arising out of these shares and the investment of their sale proceeds to the total income of the assessee. This decision has been confirmed by the Commissioner of Income-tax (Appeals). The assessee has consequently come up in second appeal before us." Before the Tribunal the case of the assessee was, " . . . . that on partial partition of the bigger HUF, Ms. Harbanslal Mal-hotra, no portion of the converted property was received by the spouse or minor child of the assessee. On the other hand, out of the total pool of 12,320 shares, 2,010 shares were received by the smaller HUF of V. P. Mal-hotra, and they could not be said to have been received by the assessee, his spouse or minor children."
(3.) On the points of fact, there is no dispute. It is not the case of the Income-tax Officer that any property has been received by the spouse or minor child of the assessee ; it is not also his case that on partition any benefit or income thereto has been received by the spouse or the minor child. If that be so, it is difficult to see how Section 64(2) (c) can be made applicable to this case.;