SETHRUMAN J.

In this reference made under section 256 (1) of the Income-tax Act, 1961, at the instance of the Additional Commissioner of Income-tax Madras, 1, Madras, the following question has been referred for the opinion of this court :

"Whether, on the facts and in the circumstances of the case the Appellate Tribunal was right in holding that the properties inherited by karuppan Chettiar form his divided father constituted his separate and individual properties and not the properties of the joint family constiting of himself, his wife, sons and daughters, and hence the income therefrom is not assessable in the hand of the assessee, Hindu undivided family ?" *

There was one Palaniappa Chettiar who along with his wife, Anandavalli Achi, their son, Karuppan Chettiar, and their daughter-in- law, constituted a Hindu undivided family. There was a partition in his family on March, 22, 1954, by and under which palaniappa Chettiar was allotted certain properties as and for his share and he got separated. This partition was recognised by the income-tax department under section 25A of the Indian Income-tax Act, 1922. Thereafter, Karuppan Chettiar, son of daughter constituted a Hindu undivided family which is the assessee in the present reference and has been assessed in that status. Palanippa Chettiar, the father, died on September 9, 1963, leaving behind his widow, Anandavalli Achi, and Karuppan Chettiar, his son, who is also the karta of the assessee-Hindu undivided family, as his legal heirs. These two persons succeeded to the properties left by Palaniappa Chettiar under section 8 of the Hindu Succession Act and divided the same between themselves. In the assessments made on the assessee-Hindu undivided family for the assesments years 1966-67 to 1970-71, the Income-tax Officer included in the computation of the total income, the income received from the properties inherited by Karuppan Chettiar from his father, Palaniappa Chettiar. The assessee-family appealed to the Appellate Assistant Commissioner contending that the said properties did not belong to the Hindu undivided family as such but only to Karuppan Chettiar as an individual and consequently the income derived therefrom could not be assessed as the income of the assessee-Hindu undivided family. The Appellate Assistant Commissioner rejected this submission and thereafter the matter was taken on appeal to the Appellate Tribunal.The Tribunal, following a decision of the Allahabnad High Court in Commissioner of Income-tax v. Ram Rakshapal Ashok Kumar held that the properties did not form part of joint family properties so that the income therefrom could be assessed as the income in the hands of the family consisting of Karuppan Chettiar and his sons and other members. It is this order of the Tribunal which is sought to be challenged by the Commissioner of Income-tax by raising the question set out already.

A similar question arose for the decision of this court in T. C. No. 276 of 1972 (Additional Commissioner of Income-tax v. Manicka Mudaliar - See page 521 supra) and the judgement is dated 17th November, 1976. In that judgement, to which one of us was a party, after noticing the decision relied on by the Tribunal in Commissioner of Income-tax v. Ram RakshpaL Ashok Kumar the following observations were made (page 523) :

"The same view has been taken by the Assam High Court in the other decision referred to already (Ghasiram Agarwalla v. Commissioner of Gift-tax No decision of any court taking a contrary view has been brought to our notice." *

Following the decision of the Allahabad and Assam High Court it was held that the income from the property inherited from a divided father represented the separate property or the individual property of the heir.

The learned standing counsel for the commissioner of Income-tax brought to our notice a decision of the Gujarat High Court which is not year fully reported. That decision was renderd in Commissioner of Income-tax v. Dr. B