JUDGMENT

GUPTA, J. :—These two appeals, brought on certificates granted under Section 66A (2) of the Indian Income-tax Act, 1922, arise out of a common Judgment of the Calcutta High Court disposing of two references, one under sub-section (1) and the other under sub-section (2) of Section 66 of the Act. The appellants are members of an undivided family governed by the Dayabhaga School of Hindu Law and were assessed as a Hindu Undivided Family for the assessment year 1948-49, the relevant previous year being the Bengali Year 1354 which corresponds to the period from April 14, 1947 to April 13, 1948. A sum of Rs. 1.96,045/- was added by the Income-tax Officer to the Income of the undivided family in the aforesaid assessment year as income from Agricultural activities carried on in Pakistan. The land out of which this income had accrued fell within the territory of Pakistan on the partition of India in 1947. It is not disputed at this stage that following the amendment in 1950 of the definition of "agricultural income" in the Income-tax Act this income which accrued in Pakistan was taxable under the Indian Income-tax Act, 1922.

2. The material facts as appearing from the order of the Appellate Tribunal, summarised in the statements of case drawn up under Section 66 of the Act are as follows. The assessee, that is the Hindu Undivided Family of which the appellants are the members, did not include in its return the aforesaid sum of Rs. 1,96,045/- on the ground that this income did not belong to the Hindu Undivided Family but to its members in their individual capacity. It appears from an order passed by the Agricultural Income-tax Officer, Pakistan, to which the Income-tax Officer in Calcutta referred and which forms a part of the statement of case, that the Pakistan Income-tax Officer had treated the income from the agricultural land as belonging to 773 each member of the Hindu Undivided Family separately according to their respective shares. The Income-tax Officer, District Calcutta 1 (2), though he appears to have proceeded on the basis of the Pakistan Agricultural Income tax Officer s order, assessed the income tax Officer s order, assessed the income in the hands of the assessee, the Hindu Undivided family. The appeal preferred by the assessee against this order was dismissed by the Appellate Assistant Commissioner who did not accept the contention that the income belonged to each appellant individually, and referring to Section 25A of the Income-tax Act found the appellant s claim unsustainable in the absence of any case made by them that their joint properties had been partitioned. On further appeal by the assessee, the Tribunal, found that the provisions of Section 25A of the Income-tax Act, 1922 to which the Appellate Assistant Commissioner referred was not relevant and he had failed to appreciate the assessee s case which was not that the land from which the income in question had accrued was originally a joint family property and was subsequently partitioned, that the department had to prove that the agricultural income in Pakistan belonged not to the appellants in severalty as appearing from the order of the Agricultural Income-tax Officer of Pakistan but to the Hindu Undivided Family and the Income-tax Officer was wrong in assessing this income in the hands of assessee without discharging the onus that lay upon him. On these findings the Tribunal held that the department was not justified in treating the agricultural income in Pakistan as belonging to the Hindu Undivided family and allowed the appeal.

3. At the instance of the Commissioner of Income-tax, West Bengal II, the Tribunal referred to the High Court the following question.

"Whether on the facts and in the circumstances of the case, the Tribunal was justified in placing the burden of proof upon the department and excluding the income from Pakistan agricultural properties from the assessee s income?"

Subsequently, on the application of the Commissioner of Income-ta