A.N. GROVER, J.

(1) THIS is an appeal by special leave from the judgment of the Calcutta High court arising out of a reference under the Wealth Tax Act, 1957 in which the question involved is one of importance, namely, whether a Jain undivided family is included in the expression "Hindu undivided family" within S. 3 of the Act.

(2) THE facts are few and may be stated. For the assessment year 1957-58, the valuation date being 12/12/1956, the Wealth Tax Officer assessed the family assets of the assessee in the status of a Hindu undivided family. On appeal to the Appellate Assistant Commissioner the contention raised, inter alia, were that : (i) upon the description of the assessee in the notice of demand the assessment should be deemed to have been made in the status of an association of persons which was not a unit on which tax could be levied under the Act ; (ii) even if the assessee was to be treated as a Hindu undivided family, the imposition of wealth-tax on such family was ultra vires the Constitution.

(3) THESE contentions failed before the Appellate Assistant Commissioner. The Appellate tribunal, to whom the matter was taken in appeal, held that the assessee followed the Jain religion and since the unit chargeable to wealth-tax under S. 3 of the Act was either individual or Hindu undivided family or company none of the units covered the case of the assessee which was a Jain family. According to the tribunal Jains were not Hindus and, therefore, the expression "Hindu undivided family" in S. 3 did not cover the case of a Jain family. The tribunal set aside the assessment on this ground alone. The Commissioner of Wealth-tax filed an application under S. 27(1) of the Act praying that the question of law which arise out of the order of the tribunal be referred to the High court. At the time of the hearing of that application it was suggested on behalf of the assessee that further questions arising out of the order of the tribunal should also be referred. Finding that questions other than the question suggested by the Commissioner of Wealth Tax arose out of the order, the Tribunal referred the following question of law for the opinion of the High Court:

"1. Whether, the assessee, a Jain undivided family, was not a Hindu undivided family within the meaning of. S. 3 of the Wealthtax Act, 1957, and as such the tribunal was right in setting aside the assessment made on the assessee?

2. Whether levy of Wealth-tax on Hindu undivided family or joint family governed under Mitakshra School of Hindu law was beyond the legislative competence of Parliament and ultra vires the Constitution of India?

3. Whether the Wealth Tax Act in so far as it purports to levy Wealth-tax on Hindu undivided families is void and inoperative as it offends Article 14 of the Constitution of India?"

The High court held that the Jains not being Hindus in the generally accepted sense of the term a Jain undivided family could not be a Hindu undivided family although the incidence of a Jain family and a Hindu family "may be the same or largely the same". According to the High court, in order to form a Hindu undivided family its members must be Hindus, the assessee family being Jains, were not Hindus and so its members could not form a Hindu undivided family although it was "capable of forming a unit of very much of the same type and governed by the law applying to a Hindu undivided family". The answer to the first question, therefore, was returned in the affirmative and in favour of the assessee. The other two questions were not pressed before the High court, presumably in view of the decision in Banarsi Doss v. Wealth Tax Officer, Special Circle, Meerut.

(4) ACCORDING to S. 2(c) of the Act assessee means a person by whom Wealth tax or any other sum of money is payable under the Act and includes

(I) every person in respect of whom any proceedings under this Act has been taken for the determination of wealth-tax payable by hi