Rajesh Balia, J. - (1.) THESE are two applications under Section 256(2) of the Income-tax Act, 1961, arising out of the common order passed in Income-tax Appeals Nos. 863 and 864/JP of 1985 in respect of the very same assessee for the assessment years 1981-82 and 1982-83 for raising an identical issue for two years as under : "R. A. No. 185/JP of 1987 : Whether, on the facts and in the circumstances of the case and in law, the Income-tax Appellate Tribunal was justified in allowing the claim of deduction of Rs. 38,551 ?" "R. A. No. 186/JP of 1987 : Whether, on the facts and in the circumstances of the case and in law, the Income-tax Appellate Tribunal was justified in allowing the claim of deduction of Rs. 38,859 ?"
(2.) THE assessee, the late Smt. Prabha Gupta, was a widow of Kashiram. On the death of Kashiram, she along with her two minor daughters inherited the properties of Kashiram. As per the will left by Shri Kashiram, the widow, Smt. Prabha Gupta, and two daughters were entitled to receive the amount from his share in Kashiram and Sons in equal ratio, and in his place his widow was nominated to be a partner. THE will also stated that the widow of Kashiram and his two daughters will be the equal partners as far as the properties left by her husband are concerned. The assessee claimed that only that part of the share income from Kashiram and Sons, to which she was entitled as an heir of Kashiram is liable to be taxed as her income in her hands, but the share of the daughters cannot be included in her income. This contention was not accepted by the Income-tax Officer. He included in the income of the assessee the share from the firm as per computation made in the assessment of the firm and, did not exclude the shares to which the daughters were entitled as per the will of the deceased Kashiram. The Appellate Assistant Commissioner agreed with the Income-tax Officer. However, the Tribunal found that on the death of Kashiram three rights could not have been constituted as one and, therefore, it could not be considered the income of a single person and since the existence and validity of the will has not been disputed, as per the will Smt. Prabha Gupta was nominated as a partner in Kashiram and Sons. Whatever share income can be allotted to Smt. Prabha Gupta was an income received by her on behalf of the heirs and two daughters in equal shares as per the will. In other words, the Tribunal was of the view that this was not a case of disbursement of income after having been earned by Smt. Prabha but transfer of income at source by operation of the will, as heir of her husband. On this finding, the shares of the daughters were directed to be deducted from the income of Smt. Prabha Gupta now through her legal representative and only her share was allowed to be taxed in her hands.
(3.) THE application of the Revenue under Section 256(1) for referring the aforesaid question of law has been rejected by the Tribunal by a common order. THErefore, the question as raised by the Revenue is not a referable question of law and it is totally a question of fact. Having heard learned counsel, we are in agreement with the Tribunal that in the facts and circumstances of the case, no question of law arises as the Tribunal has decided the issue only on the facts. Both the applications stand rejected. ;