1. This is an application under Article 226 of the Constitution for the issue of appropriate writs prohibiting the respondent-Income-tax Officer from proceeding with the assessment of the petitioner for the assessment year 1963-64 on the basis that the beneficiaries of the estate are the members of a Hindu undivided family. Two brothers, Ramcharan Sarkar and Gagan Chandra Sarkar, were governed by the Dayabhaga School of Hindu law. Ramcharan died some time in 1902, leaving him surviving his three sons, Surendra, Bidhu Bhusan and Ganapati. Gagan died some time in 1904 after having made and published his will which was duly probated in the Alipore Court some time thereafter. Gagan appointed his wife, Kusum Kumari, and his nephew, Surendra as the executrix and executor, respectively, of his said will and declared that he had taken Ganapati, his brother's son, in adoption and that, subject, to certain legacies and payment of maintenance to his widow for which the entire estate shall be charged, the income therefrom to be divided as to a moiety thereof to be paid to Ganapati and the remaining moiety in equal shares to Surendra and Bidhu. The said will recited that all the properties either standing in his own name or in the benami of his brother-in law, his nephew, Surendra and his daughter, Haridasi, were his self-acquired properties. The will further contained a prohibition against the partition of the properties and devolution at any stage to any persons not belonging to the Gotra of the testator. In other words, the testator provided for devolution in the male line. The widow died some time in 1928, and thereafter by a registered deed an agreement was recorded by way of family settlement on the 19th December, 1940, whereby Ganapati, Surendra and Bidhu agreed to share the income from the estate of the deceased, subject to the legacies mentioned therein, in equal shares. There was a further declaration that all the properties should at present remain joint but if any of the parties desired to get his own share in the entire properties or any particular property demarcated and partitioned, he should be entitled to get the same partitioned and allotted. It appears that Surendra, Bidhu and Ganapati had been filing returns for assessment to income-tax from the assessment years 1940-41 to 1956-57 and except for the first year when the status was described as " zamindar ", for all the remaining years the status was declared to be a Hindu undivided family, and assessments for these years were made in the status of a Hindu undivided family. Surendra died in October, 1952, Ganapati in January, 1955, and Bidhu on the 16th January, 1959. Ganapati left no male children but eight daughters. In 1955 a partition suit, being Suit No. 2539 of 1955, was filed in this court by the daughters of Ganapati for a declaration that they were jointly entitled to one-third share in the estate left by Gagan and for partition thereof. This was resisted by the heirs of Surendra and by Bidhu who contended, inter alia, that Gagan did not have any self-acquired property of his own but the properties were the joint family properties of Ramcharan and Gagan and so Gagan could only dispose of his half share in such properties by his will. Accordingly, as under the will Ganapati had been given half share in the estate of Gagan, Ganapati was only entitled to one-fourth share in the entire estate which had devolved on his heirs. In this suit some time in 1956, a receiver was appointed of the entire estate but subsequently by an order dated the 13th April, 1959, the present petitioner, Mr. B.C. Ghose, was appointed receiver in respect of the fisheries comprised in the said estate while another receiver was appointed in respect of the remaining properties of the said estate, who is the petitioner in the next matter being Matter No. 701 of 1967. Even after the appointment of the receivers the income was being assessed in their hands in the status of a Hindu undivided family till the assessment year 1959-60. Some time in 1965 proceedings were started by the respondent-Income-tax Officer to complete the regular assessment for the years 1960-61 to 1965-66 in respect of which provisional assessments had already been made on the basis of the beneficiaries' status being that of a Hindu undivided family. In spite of the objections of the petitioner assessments were completed for 1961-62 and 1962-63 while the reassessment for 1960-61 under Section 147 of the Income-tax Act, 1961, was still pending. In respect of the assessment year 1963-64 the petitioner by his letter dated the 14th March, 1966, required of the respondent not to proceed on the basis of the assessee being a Hindu undivided family without giving an opportunity to the petitioner to present his case. This application was made and the rule obtained on the 16th November, 1967, and an interim order prohibiting the respondent Income-tax Officer from enforcing any demand in respect of the said assessment was granted by this court.

2. Mr. Sen, the learned counsel for the department, produced before me all the assessment records of the petitioner and I find that for the assessment year 1960-61, the respondent-Income-tax Officer completed the assessment on both the receivers on the 3rd of March, 1969, and that in making the assessment orders, the Income-tax Officer had dealt with the petitioner's contention that the status should not be taken as that of Hindu undivided family. It is to be mentioned in this connection that a preliminary decree was passed by this court in the said partition suit on August 11, 1960, declaring the shares of the heirs and legal representatives of each of the three brothers, Surendra, Ganapati and Bidhu, as one-third of the estate left by Gagan and directing partition of the said properties An appeal has been taken from that decree which is still pending in this court.

3. Mr. Banerjee, the learned counsel for the petitioner, submitted that at no point of time did the present beneficiaries and/or their predecessors-in-interest constitute a Hindu undivided family. As it would appear from the will of Gagan, the properties were the self-acquired properties of Gagan and the devolution of the estate was under the will and not by inheritance. In the case of persons governed by the Dayabhaga law, the heirs do not automatically form a Hindu undivided family and for this proposition the decision of a Division Bench of this court, of which I happened to be a member in Commissioner of Wealth-tax v. Gouri Sankar Bhar, [1968] 68 I.T.R. 345 (Cal.) was relied on. In that case it was held that on the death of a Hindu governed by the Dayabhaga school of Hindu law, his heirs do not spontaneously, by operation of law, become members of a Hindu joint family. They remain as co-owners with definite and ascertained shares in the properties left by the deceased, unless they voluntarily decide to live as a joint family. The heirs of a Hindu governed by the Diyabhaga school cannot, therefore, be assessed to tax as a Hindu undivided family on the entire net wealth left by the deceased but each of the heirs must be separately assessed to tax on his share as an individual unless there is evidence to show that the heirs had voluntarily decided to constitute themselves into a Hindu joint family. Mr. Banerjee submitted that there is no evidence in this case that Surendra, Ganapati and Bidhu decided to form a joint Hindu family or on their repective deaths their heirs and legal representatives also continue to be members of a joint family. Mr. B. Das, also appearing for the petitioner, further elaborated this argument by pointing out that as Ganapati only left eight daughters, of whom six were married and who were living at different places with their husbands, it is not practicable to consider them as members of a joint family along with the sons of Surendra and Bidhu. Further, the family arrangement dated the 19th December, 1940, described the properties as joint properties in which each of the parties is declared to have an undivided one-third share which they were entitled to have partitioned and demarcated. The enjoyment of the properties were separate and distinct as each of the three brothers was entitled to an equal one-third share of the income from the estate. It was submitted that this document also negatives any presumption of jointness between the members of the three brothers. In the judgment given by this court in making the preliminary decree, the court has held that the estate was the personal and self-acquired property of Gagan and was not the joint property of Gagan and his brother, Ramcharan. Reference was also made to another decision of this court in the case of Biswa Ranjan Sarvadhikary v. Income-tax Officer, F-Ward, District II Calcutta, [1963] 47 I.T.R. 927 (Cal.) where the facts were as follows : A Hindu governed by the Dayabhaga school of Hindu law died intestate leaving him surviving his widow and one son. For many years thereafter, the widow and the son were assessed separately in respect of their shares of the rental income from the immovable properties left by the deceased. In the relevant year, the Income-tax Officer attempted to assess the entire income as the income of a Hindu undivided family consisting of the mother and the son. The court held that the mother and the son, being governed by the Dayabhaga school of Hindu law, had defined shares in the properties and they could not be assessed in the status either of an association of persons or of a Hindu undivided family. The court further observed that the petitioner was entitled to resort to the writ jurisdiction of the High Court when he received the letter containing the opinion of the Income-tax Officer and his proposal to make an assessment on the basis of a Hindu undivided family which he had no jurisdiction to make. Mr. Das laid emphasis on the fact that in that case also the court exercised its writ jurisdiction in a case where there was a mere threat of action by the Income-tax Officer. Mr. Das further submitted that the question in this application is one of the proper exercise of jurisdiction and if there is an error of jurisdiction such error would be rectified by this court by the issue of a proper writ. His submission was that the finding that the beneficiaries constituted a Hindu undivided family is a jurisdictional fact in the sense that it gives the Income-tax Officer jurisdiction to impose the tax at the rate applicable to a Hindu undivided family and if the Income-tax Officer by an erroneous decision of that fact confers on himself a jurisdiction which is not vested in him, this court would certainly interfere. This proposition is too well established to need any authority. Mr. Das referred me to a recent decision of the Supreme Court in the case of State of Madhya Pradesh v. D.K. Jadav, A.I.R. 1968 S.C. 1186 where it was observed that it was well established that where the jurisdiction of an administrative authority depended upon a preliminary finding of fact, the High Court was entitled, in a proceeding for a writ, to determine upon its own independent judgment whether or not that finding was correct. Following this decision, B.C. Mitra J. in the case of Rama Krishna Iyer v. Fifth Industrial Tribunal, held that it was well settled that, if questions of fact raised in a writ petition are jurisdictional facts and if in deciding such a fact the Tribunal went wrong, the High Court may go into the question of fact and correct the wrong decision in the exercise of its writ jurisdiction. Mr. Das accordingly submitted that it would be proper for this court in this application to go into and decide the question as to whether the beneficiaries in this case constitute a Hindu undivided family. Finally, Mr. Das placed before me the decision of the Allahabad High Court in the case of L. Baij Nath v. Commissioner of Income-tax, [1954] 26 I.T.R. 324 (All.). The decision is fairly represented in the head note which is as follows:

" The fact that in previous years the assessee had been assessed as a member of a Hindu undivided family does not bar the Income-tax Officer from going into the question whether the claim put forward by the assessee in a subsequent year that he had been wrongly assessed as a member of a Hindu undivided family is or is not correct and if the Income-tax Officer comes to the conclusion that there never had been a Hindu undivided family, no question can arise under Section 25A(1) 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. Section 25A(3) does not apply to such a case."

In order to appreciate the arguments advanced and the case law cited on behalf of the petitioner certain provisions of the Income-tax Act, 1961, with the corresponding provisions of the repealed act of 1922 have to be considered. Section 26 (corresponding to Section 9(3) of the old Act) provides that where property consisting of buildings or buildings and land appertaining thereto is owned by two or more persons and their respective shares are defined and ascertainable, such persons shall not in respect of such property be assessed as an association of persons, but the share of each such person in the income from the property shall be included in his total income. It was on the interpretation of this section that Sinha J., as he then was, decided the case in Biswa Ranjan Sarvadhikary v. Income-tax Officer, F-Ward, District II(2), Calcutta. Obviously, under this section the Income-tax Officer could not assess the income derived from immovable property by persons having defined and ascertained shares therein by clubbing together such income and where on the face of the record the persons being assessed have definite and ascertainable shares in such property, the Income-tax Officer could not by an erroneous decision of that fact, which is the jurisdictional fact, assume jurisdiction to make the assessment on such persons as an association of persons. The regular assessments are made under Sections 141 to 143 (corresponding to Sections 22 and 23 of the old Act) and an assessee had the right to appeal from such assessments to the Appellate Assistant Commissioner under sections. 246 to 248 (corresponding to section 31 of the old act) and further appeals to the Income-tax Appellate Tribunal and then reference on questions of law to the High Court. The procedure for assessment of a representative assessee is in Sections 160 to 162 (corresponding to sections 40 and 41 of the old Act). Under these sections the court of wards, the administrator-general, the official trustee or any receiver or manager appointed by or under any order of a court are, inter alia, representative assessees and they are deemed to be assessees for all the purposes of the Income-tax Act and subject to all the duties, responsibilities and liabilities as if the income was income received by or accruing to or in favour of them beneficially and they would be liable to assessment in their own name in respect of that income. The material provision is as follows:

" But any such assessment shall be deemed to be made upon him in his representative capacity only, and the tax shall, subject to the other provisions contained in this Chapter, be levied upon and recovered from him in like manner and to the same extent as it would be leviable upon and recoverable from the person represented by him,"

It would therefore follow that though the assessment is to be made on the receiver the calculation of tax would be on the basis of the tax leviable on the share of each beneficiary if such beneficiaries have separate and well-defined shares. The only other section requiring consideration is section 171 (corresponding to section 25a(3) of the old act) which provides that a Hindu family hitherto assessed as undivided shall be deemed for the purposes of the Act to continue to be a Hindu undivided family except where and in so far as a finding of partition has been given under this section in respect of that Hindu undivided family. Where at the time of making an assessment it is claimed by or on behalf of any member of a Hindu undivided family assessed as undivided that a partition, whether total or partial, has taken place among the members of such family, the Income-tax Officer shall make an enquiry thereinto after giving notice of the enquiry to all the members of the family. On completion of such enquiry the Income-tax Officer shall record a finding as to whether there has been a total or partial partition of the joint family property and if there has been such a partition the date on which it has taken place.

4. In the affidavit-in-opposition the contention raised by the respondent-Income-tax Officer is that all along since the year 1940-41 the income from this estate had been assessed on the assessee in the status of a Hindu undivided family. No appeals had been taken from such assessments in the earlier years and no applications had been made under Section 171 or under section 25a(3) of the old act for recording a dissolution or partition of such Hindu undivided family. In respect of the assessment years 1961-62 and 1962-63 the appeals against the determination of the status are pending before the Appellate Assistant Commissioner. The order for reassessment for the assessment year 1960-61 was passed in March, 1969, and an appeal is pending against that order. It is submitted that until and unless an order is obtained under Section 171 the status of the assessee would continue to be that of a Hindu undivided family. And there is the general submission that the application is not maintainable and should be dismissed.

5. The status in which an assessee is to be assessed is not a jurisdictional fact. The Income-tax Officer's jurisdiction to make the assessment does not depend on the status of the assessee ; only the rate of tax to be imposed may depend on such status. Undoubtedly, the heirs of a deceased governed by the Dayabhaga school of Hindu law do not constitute a Hindu undivided family automatically on the death of the deceased and cannot be assessed as such unless they have by mutual consent agreed to form a joint family. But the facts are entirely different in this case. There is no question of any inheritance from a Hindu governed by the Dayabhaga school of Hindu law. The estate has devolved under the will of Gagan. Accepting the contention that the properties were the self-acquired properties of Gagan, as a Dayabhaga Hindu he had the absolute right to dispose of his property in any way he liked. There can, therefore, be no question of the heirs of a Dayabhaga Hindu inheriting the estate of the deceased. The question is whether having been assessed for so many years as a Hindu undivided family the assessee could without recourse to the provisions of Section 171 (or Section 25A of the old Act) ask the Income-tax officer to make the assessment on the basis of a different status. Undoubtedly, the Allahabad decision cited by Mr. Das supports his contention that where the claim is that there never was a Hindu undivided family, no claim need be made under Section 25A and no order of the Income-tax Officer recording that partition has taken place is necessary. In this case also the claim is that there never was a Hindu undivided family and to that extent I am in agreement with the contention on behalf of the petitioner that the Income-tax Officer was not correct in relying on the absence of an order under section 25a or section 171, as the case may be.

6. But as I have said the finding as to the status is not a jurisdictional fact inasmuch as such a finding does not confer any jurisdiction on the Income-tax Officer. The Income-tax Officer's jurisdiction to make the assessment is either under Section 143 or, in the case of a representative assessee, under Section 161. Such jurisdiction does not depend on any other fact. If the assessee is a representative assessee, as the petitioner undoubtedly is, he is liable to be assessed under Section 161. Only the quantum of the liability would depend on whether the entire income would be assessed as the income of a Hindu undivided family or an association of persons or separate assessments are to be made in respect of the share of each beneficiary. That cannot be held to be a jurisdictional fact. Further, as I have already mentioned, the petitioner had filed appeals against the order of the income-tax Officer in respect of the assessment years 1960-61, 1961-62 and 1962-63 and the appeals are pending. In this connection it would be relevant to refer to the decision of the Supreme Court in Shivram Poddar's case, the following observation was made :

" It is, however, necessary once more to observe, as we did in C.A. Abraham's case, that the Income-tax Act provides a complete machinery for assessment of tax, and for relief in respect of improper or erroneous orders made by the revenue authorities. It is for the revenue authorities to ascertain the facts applicable to a particular situation, and to grant appropriate relief in the matter of assessment of tax. Resort to the High Court in exercise of its extraordinary jurisdiction conferred or recognized by the Constitution in matters relating to assessment, levy and collection of income-tax may be permitted only when questions of infringement of fundamental rights arise or where on undisputed facts the taxing authorities are shown to have assumed jurisdiction which they do not possess. In attempting to by-pass the provisions of the Income-tax Act by inviting the High Court to decide questions which are primarily within the jurisdiction of the revenue authorities, the party approaching the court has often to ask the court to make assumptions of facts which remain to be investigated by the revenue authorities."

7. In this case the Income-tax Officer is proposing to make an assessment. No assessment orders had been made at the time the petition was presented though I am informed that such assessments had been completed and communicated to the petitioner since under the direction of this court. The petitioner himself has filed appeals in respect of the three immediately preceding years which are pending before the appellate authorities. I am unable to accept the contention that on the undisputed facts of this case it has been established that the Income-tax Officer has assumed a jurisdiction not vested in him. He is exercising a jurisdiction vested in him but perhaps erroneously. For that the remedy is by appeal. Accordingly I must dismiss the application and discharge this rule. All interim orders would be vacated. There will be no order as to costs in this application. The operation of this order will be stayed till 26th November, 1969.