PRAKASH KRISHNA, J.

( 1 ) THIS reference is at the instance of the department under Section 256 (1) of the Income Tax act, 1961. The Income Tax Tribunal, New Delhi has referred the following question for the opinion for the opinion of this court.

"whether, on the facts and in the circumstances of the case, the Tribunal was legally correct in holding that the share income from the firm was to be assessed in the hands of HUF and not individual ?"

( 2 ) THE facts giving rise to the present reference are as follows :-The father of the assessee, namely, Shri Amar Nath was a partner in firm M/s Amar Handloom factory, Sardhana. He died intestate on 4th June, 1971 leaving a credit balance of Rs. 77,456/- in the firm of M/s Amar Handloom Factory, Sarshana. The deceased left behind his wife, two sons and three minor daughters. The assessee who is resident individual was unmarried at the time of death of his father, received Rs. 15000/- as his share from the credit balance of Rs. 77,456/ -. This amount was transferred to the personal account of the assessee on 31st June, 1971 in the aforesaid firm. Thereafter the assessee along with his brother Shri Vijay Kumar formed a new firm in the name and style of M/s Amar Tex, Sardhana. The assessee entered into the partnership of this new firm as representing his HUF in it and transferred Rs. 15000/- from his individual account to the alleged HUF account.

( 3 ) IN the course of assessment proceedings the assessee claimed that the share income of the aforesaid firm belongs to his HUF. This plea was negatived by the Income Tax Officer, Circle 2 (2) on the ground that the assessee was unmarried at the time of the death of his father. There was no HUF in existence at that time and the assessee has succeeded to Rs. 15000/- as his share in his individual capacity being son of deceased and not as Karta of HUF. This order was reversed by the Appellate Assistance Commissioner of Income Tax. The Tribunal has confirmed the order of the Appellate Assistant Commissioner of Income Tax.

( 4 ) HEARD Shri A. N. Mahajan, learned Standing Counsel for the Revenue in support of the reference. Sri J. C. Bhardwaj has filed his appearance on behalf of the assessee.

( 5 ) THE question here is whether the income or asset which a son inherits from his father, the asset being self acquired property of father, should be assessed as income of the individual income of the son or as income of the Hindu undivided family of the son. The assessee was unmarried at the time of his fathers death. He received Rs. 15,000/- out of the sum of Rs. 77,456/- left by the father. The amount was credited in his personal account.

( 6 ) BEFORE the Income Tax Officer it was submitted by the assessee that the decision of this Court given in the case of CIT v. Ram Rakshapal Ashok Kumar (1968) 67 ITR 164 stands over ruled by subsequent decision of the Allahabad High Court, reported in (1978) Tax 51 (3) and 30, radhey Lal Shri Krishna v. C. I. T.

( 7 ) BUT the Supreme Court in the case of Commissioner of Wealth Tax v. Chandra Sen (1986)161 I. T. R. 370 has approved the judgment of this Court given in the case of Ram Rakshapal ashok Kumar. The Supreme Court has noticed the divergent views of different High Courts on the point that the income from the assets inherited by a son from his father from whom he had separated by partition could not be assessed as income of Hindu Undivided Family of the son. The said controversy has been decided by the Supreme Court in the light of the provisions of section 8 of the Hindu Succession Act, 1956. It has been held that the income received by a son from the assets inherited by him from his father be the income of the individual income of the son and not of the HUF of the son. It was of the view that when a male dies the succession in respect of his self acquired property shall be governed by the provisions of Section 8 of the hindu Succession Act. A son is Class I heir as mentioned in schedule to the Hindu Succession

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