P. B. MUKHARJI, ACTG. C. J.

( 1 ) THESE are two income-tax references. One is Income-tax Reference No. 73 of 1964. The other is the Income-tax Reference No. 149 of 1964. They relate to the same parties. They raise common questions of fact and law. The Tribunal on its own referred one question under Section 66 (1) of the Income-tax Act, in the following terms :" (1) 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 ?"

( 2 ) THEREAFTER, upon an order by this court, the Tribunal was directed to refer the following three other questions to this court under Section 66 (2) of the Income-tax Act:" (a) Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that Section 25a of the Indian Income-tax Act, 1922, had no application in the present case? (b) If the answer to question No. 1 (i. e. , (a)) is in the negative, then, whether, on the facts and in the circumstances of the case, the Tribunal was right in placing the onus upon the department to prove that the agricultural income in Pakistan belonged to the Hindu undivided family and still retained that character ? (c) If the answer to question No. 2 (i. e. , (b)) is in the negative, then, whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the agricultural income in Pakistan did not belong to the assessee-Hindu undivided family, and in directing exclusion of the said income from the assessable income of the family ?"

( 3 ) THERE was a direction in the order passed by this court under Section 66 (2) of the Income-tax Act, that Income-tax Reference No. 149 of 1964 shall be heard along with the earlier one, i. e. , Income-tax Reference No. 73 of 1964.

( 4 ) WE shall, therefore, on these facts and circumstances, dispose of both these references by one judgment.

( 5 ) THE facts giving rise to these questions should be set out at the outset. The assessment year is 1948-49 for which the relevant previous year is the year 1354 B. S, The assessee is a Hindu undivided family. A sum of Rs. 1. 96,045 was added to its income being an income from agricultural activities carried on in Pakistan. There is no dispute with regard to the quantum determined. By the amendment of the definition of " agricultural income " made in the year 1950 such income accruing in a foreign country is taxable under the Indian Income-tax Act. The assessee did not include that income in its return. The Income-tax Officer assessed that income besides certain others with which this reference is not concerned, in the hands of the assessee. In doing so he relied upon not only the order passed by the Agricultural Income-tax Officer of Pakistan dated 18th February, 1949, but also upon the Pakistan Income-tax Officer's order of assessment dated 27th February, 1950, both of which appear in the paper-book. In the assessment order of the Agricultural Income-tax Officer of Pakistan dated 18th February, 1949, the status shown by the Pakistan Agricultural Income-tax Officer was "individual". But in the body of the order it was clearly stated by the Pakistan Income-tax Officer that the four brothers who constitute the Hindu undivided family here in India for the purposes of income-tax: had equal shares in the properties which were " jointly managed " and it was only for convenience and facility of the assessment work that the total agricultural income derived from the entire property was determined by the Pakistan Agricultural Income-tax Officer first and then each was apportioned his share of the income. In that order the Pakistan Agricultural Income-tax Officer clearly came to the finding that each assessee had 1/4th share in the property but did not come to a finding that these were divided shares and he calculated the total agricultural income shown in schedule 'a' to hi

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