SABYASACHI MUKHARJI, J.

( 1 ) THIS reference has been made to this court in respect of the assessment to income-tax for the assessment year 1970-71, corresponding to the previous year which ended on 31st March, 1970. The assessee was governed by the Dayabhaga school of Hindu law.

( 2 ) ONE Anath Bandhu De Talukdar had three sons: T. N. Talukdar, P. N. Talukdar (the assessee), and one M. Talukdar and two daughters. During the accounting year the assesses had lived with his sons jointly and the sons were Sanjoy, Sanjit and Ranjit, at that time all of them being minors, along with the assessee's wife, Mrs. Meena Talukdar. The assessee's father had left a house at Deoghar and another house at Hindustan Park, Calcutta. The assessee gave a declaration on April 19, 1969, and it may not be inappropriate to refer to the said declaration. The assessee stated in the said declaration that the assessee possessed and owned as his self-acquired property, several movable properties in the form of shares in companies, credit balance in banks, etc. , and immovable properties including residential house at No. 5, Sunny Park, Calcutta, and that, being desirous, the assessee, thereafter, stated, inter alia, as follows:"that being desirous of vesting the said premises No. 5, Sunny Park, Calcutta, including furniture, fixture, fittings, electric installations, air-conditioning plant attached to or embodied with the said premises, in the joint family comprising of myself, my wife, Mrs. Meena Talukdar and minor sons, Sanjoy, Sanjit and Ranjit, I have on the auspicious day of 1st Baisakh, 1376 (corresponding to 14th day of April, 1969) unequivocally and irrevocably transferred to and thrown into the common hotchpot of the said family the said property being premises No. 5, Sunny Park, Calcutta, more particularly described hereunder. "

( 3 ) IN the assessment proceeding for the relevant year the assessee had claimed that he had thrown his interest in the immovable property along with the movable arid immovable properties to the Hindu joint family by declaration dated 19th April, 1969, referred to hereinbefore. The ITO held that the assessee was a Hindu governed by the Dayabhaga school of Hindu law and as such it could not be said that, he could throw his property to the HUF. In those circumstances the ITO held that the notional income of the property at No. 5, Sunny Park, Calcutta, was assessable in the hands of the assessee since he was the owner of the property. He took the bona Me value of the property at 10% of the income out of which he deducted l/6th and made the assessment accordingly.

( 4 ) THE assessee went up in appeal before the AAC. He was, however, unsuccessful there. The AAC relied on certain authorities and upheld the order of the ITO. The assessee went up in further appeal before the Income-tax Appellate Tribunal. The Income-tax Appellate Tribunal referred to several decisions and to Article 37 of the Constitution of India and in view of the directive principles enshrined in the Constitution the Tribunal held that the assessee had thrown his self-acquired properties including the residential house at No. 5, Sunny Park, Calcutta, into the common hotchpot of the HUF consisting of himself, his wife and his minor sons as mentioned in the declaration and from this it followed that the dwelling house income could not be included in the total income of the assessee, the house at No. 5, Sunny Park, being an HUF property. In those circumstances, the Tribunal under Section 256 (1) of the I. T. Act, 1961, referred a particular question : inasmuch as the revenue was not satisfied with the question as framed, there was an application made to this court under Section 256 (2) of the I. T. Act, 1961, and pursuant to the direction of the High Court, the following question which calls for determination has been referred to this court. "whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the house at No. 5,

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