A question of law does not arise within the meaning of Section 256(1) or 256(2) of the Income Tax Act, 1961, when a Division Bench of the High Court has already decided the issue, and issuing a mandamus under Section 256(2) of the Act to direct the Tribunal to refer the matter would be a futile exercise.

1. If a question of law has been settled by this court after dissenting with the view taken by another High Court and if thereafter similar cases come up before the Income-tax Tribunals within the jurisdiction of this court or before this court, can it be said that question of law arises within the meaning of Section 256(1) or 256(2) of the I.T. Act, 1961 (hereinafter referred to as "the Act").

2. The Income-tax Appellate Tribunal, Chandigarh, followed a Division Bench judgment of this court in CIT v. Anand Samp [1980] 121 ITR 873, to conclude that if the karta of an HUF is a partner in a firm and his minor daughter is also admitted to the benefits of partnership in that firm, the income of the minor daughter cannot bo clubbed with the income of the karta of the HUF and the income in the hands of the karta of the HUF cannot be treated as income of an individual under Section 64(1) of the Act. Against the aforesaid order of the Tribunal, an application under Section 256(1) of the Act was filed before the Tribunal for referring the following question of law for the opinion of this court:

"Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in holding that the income of the minor daughter, Miss Aarti, from the firm, M/s. Bharat Iron & Steel Rolling Mills, was not includible in the individual assessment of the assessee under Section 64(1)(iii) of the I.T. Act, 1961 ?"

3. The Tribunal rejected the application for reference with the following. observations :

" We find that the Tribunal in fact confirmed the order of the Commissioner of Income-tax (Appeals) on the issue before it because the Commissioner had followed the judgment of the Honble Punjab & Haryana High Court in the case of Commissioner of Income-lax v. Anand Samp [1980] 121 ITR 873. In this view of the matter, we find that the Honble High Court has already expressed an opinion on the issue on which the Revenue is seeking a reference. In our opinion, we are not entitled to burden the Honble High Court with unnecessary litigation with regard to an issue on which we have already been advised. We, therefore, reject the reference application."

4. Feeling aggrieved, the Commissioner of Income-tax has come to this court under Section 256(2) of the Act.

5. Shri Ashok Bhan, appearing for the Revenue, has urged that since there is a conflict of opinion between this court and the Allahabad High Court in Madho Prasad v. CIT [1978] 112 ITR 492, a question of law did arise and, therefore, the Tribunal should have referred the matter for the opinion of this court under Section 256(1) of the Act, and since the Tribunal has failed to do so, a mandamus should be issued to the Tribunal under Section 256(2) of the Act. Reliance is placed on a decision of the Allahabad High Court in CIT v. Vindeshwari Trading Corporation [1978] 113 ITR 791, wherein the High Court had directed the Tribunal to state the case in respect of a ques-. tion of law on which two Full Benches of the Allahabad High Court had taken one view which was followed by the Tribunal, since it was contrary to the view taken by a Full Bench of the Andhra Pradesh High Court. On those facts, it was concluded that since there is a conflict of opinion between two High Courts on the question sought to be raised by the Commissioner, which does not stand concluded by any authority of the Supreme Court, it cannot be said that no statable question "of law arises from out of the appellate order of the Tribunal. The learned counsel also relied on a decision of the Supreme Court in CWT v. Imperial Tobacco Co. of India Ltd. [1966] 61 ITR 461, and specific reliance was placed on the following observation (headnote):

"There does appear to be divergence of opinion among the High Courts as to the meaning of the word information in Section 34(1)(b) of the Income-tax Act. In view of that divergence of opinion a question of law arose in this case as to the interpretation of the word information in Se