1. A reference was made to this Court in the year 1943 and the question referred for our decision under Section 66(1) of the Indian Income-tax Act, 1922, was as follows:—

“Does the circumstance that the property held jointly by Baij Nath group and another group of the family has not been divided in definite portions stand in the way of the appellant in obtaining an order under Section 25A(i) in view of the fact that the property has hitherto been treated as the property of a Hindu undivided family composed of both the above mentioned groups ?”

2. A few facts will be necessary to explain how the question arose.

3. The assessee Baij Nath was assessed as a member of a Hindu undivided family and the assessment was made under the name and style of Amba Prasad Baij Nath from the year 1931–32 without any objection. In the assessment year 1938–39, Baij Nath claimed that he had been wrongly assessed as a member of a Hindu undivided family, that he was and had always been separate from his nephews and that the property was his self-acquired property. His claim was, however, rejected and the Income-tax Officer continued to assess him in the years 1938–39, 1939–40 and 1940–41 as a member of a Hindu undivided family. During the assessment year 1941–42, he again raised the same plea and filled an application under Section 25A of the Indian Income-tax Act, 1922. Though the application purported to be under Section 25A, the assessee claimed that he was not and had never been a member of a Hindu undivided family and that the Income-tax Officer had wrongly assessed him in previous years. He prayed that the assessment “should be separate on the applicant along with his son Ram Nath.”

4. The application was dismissed by the Income-tax Officer on the ground that the assessment must continue in the same status unless it could be shown that the property had been divided by metes and bounds. The exact words used by the Income-tax Officer in the order, dated the 10th of December, 1941, were as follows:—

“The fact whether the family was or was not joint is not relevant. As the assessment till 1940–41 has been made in the status of a Hindu undivided family, the assessee has to prove his claim under Section 25A this year………….”

5. Thus it was held that if the assessment had been made in the status of a Hindu undivided family, the assessee would have to be assessed’ in the same capacity unless an order under Section 25A was passed by the Income-tax Officer and an order under Section 25A could be passed only if the assessee could prove that the joint family property had actually been divided among the various members. The Income-tax Officer further held:

“There has been no partition within the meaning of Section 25A of the Income-tax Act and the assessment will continue to be made in the status of a Hindu undivided family.”

6. That view was upheld by the Appellate Assistant Commissioner of Income-tax and the Income-tax Appellate Tribunal. The Tribunal did not go into the question whether the assessee's contention that he had never been a member of a Hindu undivided family with his nephews was or was not correct and said as follows:—

“It is, therefore, clear that the property which has hitherto been treated as the property of the Hindu undivided family must be shown to have been partitioned in definite portions before an order under Section 25A(i) can be obtained. In the case, with which we are dealing, there is admittedly a portion of the property which is still to be divided although the property in question has been held to be owned in common and not as co-parcenary property. In these circumstances, the assessee's application under Section 25A (1) was rightly rejected by the Income-tax authorities and we see no reason to interfere with the order under appeal.”

7. While the assessment proceedings were pending, Chunna Lal and his sons had filed a suit (Suit No. 9 of 1940 in the court of the First Civil Judge, Meerut) against the assessee Baij Nath and his son Ram Nath for partition of the property on the ground that the family was joint and the entire property was joint family property. Before the Income-tax Appellate Tribunal gave its decision on the 20th of July, 1942, the learned Civil Judge had decided the case and had held that Baij Nath was not a member of a joint Hindu family with his nephews. The Income-tax Appellate Tribunal, in the statement of the case has quoted the following two issues and given extracts from the judgment of the learned Civil Judge on those issues:—

“(1) Are the plaintiffs and the defendants members of a joint Hindu family ?

(2) Is the property in suit parties' ancestral or joint family property ?”

8. As regards the first issue, the finding of the learned Civil Judge was:—

“In this case the evidence cannot prove jointness or re-union. The finding must be that the plaintiffs and the defendants Nos. 1 and 2 are not members of a joint Hindu family. The rest of the defendants are, no doubt, joint with the plaintiffs.”

9. The issue was decided partly against the plaintiffs. We may mention that the other defendants 3 to 7 were the four brothers of Chunna Lal plaintiff and the son of one of those brothers and they had been impleaded as defendants as they did not join in the suit. So the finding of the learned Civil Judge was that Baij Nath was not a member of a Hindu undivided family with the plaintiffs and defendants 3 to 7 though the plaintiffs and defendants 3 to 7 were members of a joint Hindu family.

10. The finding of the learned Civil Judge on the second issue was:—

“There was no ancestral nucleus worth the name and on this ground the property in dispute cannot be treated to be ancestral. On the score of blending also, I cannot treat the property to be ancestral,”

11. When the reference was put up before a Bench, of which one of us was a member, it was found that the Tribunal had not recorded a finding whether there ever had been a Hindu undivided family to which Section 25A could be made applicable. In the absence of findings on questions of fact, this Court was not able to answer the question referred to this Court for decision and directed the Income-tax Appellate Tribunal to find the facts and make a fresh statement. The Income-tax Appellate Tribunal has, in compliance with the order, submitted a fresh statement of the case and has formulated the questions for our decision. The questions now formulated are as follows:—

“1. Whether, in the circumstances of the case, as the applicant had allowed himself to be assessed as Hindu undivided family for a series of years, sub-section (3) of Section 25A was a bar for the applicant to obtain an order under sub-section (1) of the same section ?

2. Whether the fact that joint property (not joint family property) held by Baijnath and other members of the same family had not been divided in definite portions stood in the way of the applicant in obtaining an order under Section 25A (1), although the property has been held to be not joint family property by the Civil Judge and the applicant has been held to be a divided branch of the old family ?”

12. The Tribunal, however, has again, instead of giving us the findings of its own, on which the questions have to be answered, made long quotations from the judgment of the learned Civil Judge and has tried to summarise the decision of the learned Civil Judge. A reference under Section 66 has to be answered on findings of fact recorded by the Tribunal and not on any findings that might have been recorded in some litigation between members of the family. When the reference came before a Bench of this Court on the 18th of September, 1950, we were informed by the learned counsel for the assessee that the learned Civil Judge's judgment, from which facts had been summarised, had been set aside by a Bench of this Court in First Appeal No. 15 of 1942 decided on 13th January, 1950, and that an appeal was pending against that decision before their Lordships of the Supreme Court. Counsel, therefore, prayed that we may await the decision of the Supreme Court and as learned counsel for the Department also agreed, the hearing was postponed. The Supreme Court in its decision dated the 8th of May, 1953, has reaffirmed the main findings recorded by the learned Civil Judge and has set aside the decision of this Court. The Supreme Court has found that Lekhraj had three sons, Bhagwan Das, Phulchandand Ghasiram, that Bhagwan Das died in 1929 and, at the time of his death, he was separate from his two brothers and that there was no satisfactory evidence that, at the time when Bhagwan Das died, the sons of his two brothers, Phulchand and Ghasiram, who had died earlier than Bhagwan Das, had continued to remain joint, or, they had ever re-united. While restoring the findings of the learned Civil Judge, their Lordships of the Supreme Court remarked:—

“It had not been proved that Ghasiram and Phulchand continued as members of the joint Hindu family after the separation of Bhagwan Das.”

13. As regards the properties, their Lordships held:—

“In view of our finding that Ghasiram and Phulchand were not members of a joint Hindu family, all properties separately acquired in the name of Ghasiram or Baij Nath have to be declared as their separate properties.”

14. Except as regards houses and some other movable properties, their Lordships affirmed the decision of the trial Court.

15. As was pointed out by this Court in 1946, it is not for this Court in a reference under Section 66 of the Indian Income-tax Act to take additional evidence or refer to a judgment whether of the civil Court or of the Supreme Court to ascertain facts on which the questions referred have to be answered. In view, however, of the fact that the reference was made as far back as 1943 and though the case was once sent back to the Tribunal, the statement of the case now submitted is again just as unsatisfactory as the previous statement, counsel have requested us to consider the findings recorded by the Supreme Court as the findings of fact on which answer may be given. In the statement of the case, though the Tribunal does not say that it has accepted the findings of fact recorded by the learned Civil Judge, it seems to have been intended that the questions framed for our decision may be answered on the basis of the findings recorded by the learned Civil Judge. Those findings have now been upheld by the Supreme Court and there can, therefore, be no objection to our taking those findings into consideration.

16. The result of those findings is that Baij Nath cannot be said to have ever been a member of a Hindu undivided family with the descendants of Amba Prasad. Though Baij Nath's application purported to be under Section 25A, his claim was that he had been wrongly assessed as a member of a Hindu-undivided family with his nephews though he was a member of a joint Hindu family with his son Ram Nath.

17. The fact that, in previous years, Baij Nath had been assessed as a member of a Hindu undivided family consisting of himself and his nephews did not bar the Income-tax Officer from going into the question whether the claim put forward by the assessee was or was not correct and if the Income-tax Officer came to the conclusion that there never had been a Hindu undivided family, no question could arise under Section 25A(i) of the Indian Income-tax Act whether the joint family property had been partitioned among the various members or groups of members in definite portions or not.

18. The law on the subject was discussed at great length in the order of this Court dated the 8th of May, 1946.* That judgment has not been reported. It is not necessary for us to repeat all that was said in that judgment. For the reasons given in that judgment we may make it clear that, on the finding that Baij Nath had never been a member of a Hindu undivided family with his nephews, the mere fact that he had been wrongly assessed as a member of a Hindu undivided family with them did not bar Baij Nath's right to raise that question nor was there any bar to the Income-tax Officer's going into it and considering whether, in the assessment year in question, viz., 1941–42, he should be assessed as a member of a Hindu undivided family with his nephews. The questions framed by the Tribunal are so defective that we find it difficult to answer them in the way in which they have been framed. Probably, the Tribunal meant that, in view of the fact that it had now been established that the assessee had, in the previous years, been wrongly assessed as a Hindu undivided family with his nephews, Section 25A of the Act was applicable. This Court, in its previous order of the 8th of May, 1946, pointed out:—

“Section 25A refers to a case where a member of a Hindu family hitherto assessed as undivided applies to the Income-tax Officer, at the time of making an assessment under Section 23, that a partition has taken place among the members of such family and, therefore, the family should no longer be treated as a Hindu undivided family.”

19. It was further said in that order:—

“As we read Section 25A(i), it does not seem to us to apply to a case where a member takes up the position that he had never been a member of an undivided family and, therefore, there was no question of partition or that he had become the sole survivor of a Hindu undivided family and the property which had once belonged to the joint family had become his exclusive property.”

20. Our answer, therefore, is that Section 25A of the Indian Income-tax Act did not debar the Income-tax Officer from going into the question whether Baij Nath had been wrongly assessed as a member of a Hindu undivided family and sub-section (3) of Section 25A was, therefore, not applicable to such a case.

21. The second question does not appear to be at all clear. If the Tribunal want an answer to the question whether, where there is no Hindu undivided family and there is no joint family property or co-parcenary property, the mere fact that there was some property held in common by the co-sharers and the Income-tax Officer had wrongly assessed the cosharers as a Hindu undivided family in the previous year will debar the assessee in all subsequent years from claiming that they had never been members of a Hindu undivided family, so that they must continue to be assessed in that capacity unless they can establish in proceedings under Section 25A(i) that the property had been divided by metes and bounds, our answer must be that, in such a case, Section 25A will not be applicable and it is open to the Income-tax Officer to consider whether the assessee should be assessed as a Hindu undivided family or as an individual or a firm. As the confusion has partly been caused by reason of the fact that though the assessee set out his claim correctly in his application that he should never have been assessed in the status of a Hindu undivided family, he made his application under Section 25A of the Indian Income-tax Act and thereafter continued to claim the benefit under that section, we consider it proper to direct parties to bear their own costs.

22. Reference answered accordingly.