JUDGMENT

K. N. SINGH, J. - These appeals on certificate issued by the High Court under Article 133 of the Constitution are directed against the order and judgment of the High Court of Kerala.

Briefly, the facts giving rise to these appeals are : the respondent was a member of the erstwhile Nilambar Kovilagam governed by the Madras Marumakkathayam Act, she was assessed to income tax as Hindu Undivided Family as the family possessed considerable property including lands, forests and other properties. The Income Tax Officer assessed the respondent for the assessment years 1967-68, 1968-69 and 1969-70 treating the members of the family included within the HUF. Before the Income Tax Officer, the respondent raised a plea, that there had been division of Tavazhi under a partition agreement dated July 3, 1958 whereby all lands except forest lands were divided among the members of the family. The respondent further claimed that the members of the Tavazhi swelled to 14 and theses members effected a division in status by a registered document dated February 21, 1963. She further alleged that the division of Tavazhi into 14 shares was effected by a civil court decree in Partition Suit No. O.S. 22/1961 in the Court of Kozhikode. It was pointed out on behalf of the respondent that the partition suit was decreed and the properties were allotted to the respective shareholders. The civil court had appointed and commissioner to divide the property by metes and bounds in accordance to the shares of individual members. The respondent further claimed that since the status of HUF was disputed on account of the decree of partition the HUF could not be assessed to income tax, instead the income derived by individual members could be considered for assessment.

The Income Tax Officer rejected the respondent's claim and assessed the respondent as the head of the Tavazhi for the assessment years 1967-68, 1968-69 and 1969-70 by his order dated March 16, 1970/March 27, 1970. The Income Tax Officer held that the decree of the civil court merely conferred right on the members of the family for separate possession of the land falling to their share after the physical partition, and the final partition could be made on application made by individual members after depositing commissioner's fee. Since the civil court decree was a preliminary decree and no final decree had been passed and no actual partition had been effected and no physical partition, by metes and bounds had taken place in pursuance of the decree of partition, the statues of HUF contained for purposes of assessment. The Income Tax Officer observed that earlier the assessee was assessed having the status of HUF, and since no other evidence except the decree of the civil court had been produced by her to show that there has been a real partition, therefore, the assessee's claim for partition could not be accepted. The respondent filed a writ petition in the High Court under Article 226 of the Constitution for quashing the orders of the Income Tax Officer on the ground that he failed to recognise the disruption of HUF in making the assessment. A learned Single Judge of the High Court allowed the writ petition and quashed the assessment orders. On appeal at the instance of the revenue, a Division Bench of the High Court affirmed the order of the Single Judge. On an application made on behalf of the revenue the High Court granted certificate under Article 133 of the Constitution. Hence these appeals.

The learned Single Judge held that Section 171 of the Income Tax Act does not apply to a case where the division was effected before the commencement of the accounting period, and the HUF having received no income during the accounting period it could not be assessed to tax notwithstanding the fiction introduced by Section 171. In appeal the Division Bench held that there was no express provisions in Section 171 nor was there any necessary implication arising from the provisions of the section that the i