B. P. JEEVAN REDDY, CJ.

( 1 ) THE Income-tax Appellate Tribunal, Delhi, has stated the following two questions under section 256 (2) of the Income-tax Act, 1961 :

" (i) Whether the assessees claim for a partial partition of the immovable properties under consideration was legally acceptable under Section 171 of the Income-tax Act, 1961 ? (ii) Whether the Tribunal was in law justified in directing exclusion of the income from the properties under consideration from the assessment of the assessed Hindu-undivided family ?"

( 2 ) THE questions referred in all the references are identical. The assessee is also the same in all the references. It would, therefore, be sufficient if we refer to the facts in Income-tax Reference no. 199 of 1979.

( 3 ) THE assessee is a Hindu undivided family, Onkar Saran and Brothers. For the assessment year 1970-71, the assessee claimed that there has been a partial partition amongst the members of the hindu undivided family and requested the Income-tax Officer to recognise and record the same. The claim of partial partition was made with respect to the interest the Hindu undivided family held in certain immovable properties known as Kothiwal Nagar properties. The partial partition was said to have taken place on October 2, 1968.

( 4 ) KOTHIWAL estate originally belonged to three brothers Nand Lal Saran, Brij Pal Saran and brijraj Saran. They held the said properties as tenants-in-common. Brij Pal Saran died issueless bequeathing his 1/3rd share to the three sons of Nand Lal Saran and the only son of Brijraj saran. There was no division or partition of the said properties among the two branches of Nand lal Saran and Brijraj Saran. The income received from the said properties was being shown and treated as belonging to the aforesaid Hindu undivided families of Nand Lal Saran and Brijraj saran. The assessee herein represents Brijraj Saran group.

( 5 ) THE assessees case was that a partial partition took place on October 2, 1968, orally and that, later on, one of the members of this Hindu undivided family, Gopal Saran, instituted a suit in the civil Court, Moradabad, for a declaration that he was the owner and in possession of 5/44ths share in the said properties and its income. The suit was decreed oh November 7, 1969. The income-tax Officer rejected the claim for partial partition by his order dated June 21, 1971. An appeal to the Appellate Assistant Commissioner also failed. On further appeal, however, the tribunal set aside the Income-tax Officers order and remanded the matter to the Income-tax officer for a fresh inquiry into and disposal of the said question in the light of the directions given by it in its order. The questions whether the properties comprising Kothiwal estate were capable of partition by metes and bounds and whether such partition was essential for the purpose of Section 171 were left open. In pursuance of the order of remand, the Income-tax officer examined the question and, by his order dated March 25, 1974, rejected the petitioners claim for partial partition again. He held that a division by metes and bounds was essential and since the said properties had not been so divided, the plea of partial partition cannot be accepted in the light of the Explanation to Section 171. On appeal, the Appellate Assistant Commissioner agreed with the assessee and held that there was a valid partial partition which ought to be recognised and recorded under Section 171. He was of the opinion that a physical division of the properties was not possible in the circumstances. Thereupon, the Department preferred an appeal before the Income-tax Appellate Tribunal questioning the order of the Appellate Assistant commissioner. The Departments case was that the properties comprising Kothiwal estate were capable of physical division. The Tribunal, on examination of the materials placed before it, recorded the following findings : after the death of Brij Pal Saran in 1922, the Kothiwal estate was owned by Nan

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