( 1 ) THE Income Tax Appellate Tribunal, Allahabad has referred the following question of law under Section 256 (1) of the Income Tax Act, 1961 (here in after referred to as the Act) for opinion to this Court,

"whether on the facts and in the circumstances of the case and in law, the Tribunal was right in upholding the order of the CIT (Appeals) directing the assessing officer to work out the capital gains on 2/3rd of the sale consideration of Rs. 64,80,000/- amounting to Rs. 43,20,0d00/- ?"

( 2 ) THE dispute relates to the assessment year 1983-84. .

( 3 ) BRIEFLY, stated the facts giving rise to the present reference are as follows :the assessee is a Hindu undivided family and it is assessed as such. It consisted of Sri Dharam pal Singh (Karta), Yadavendra Pal Singh (son), Laxmi Kumari (wife) and Usha Agrawal (unmarried daughter ). The Karta died on 2nd September, 1982. The assessee HUF had entered into an agreement on 26. 5. 1982 to sell a property owned by it and known as "castle Grant" for a total consideration of Rs. 65 lacs. After the death of the Karta, namely Dharan Pal Singh, who died on 2nd September, 1982, a sale deed was executed by his son on 5th March, 1983, as Karta of Hindu Undivided Family. A sum of Rs. 20,000/- by way of brokerage was paid and the net sale proceeds were shown at Rs. 64,80,000/-before the Assessing Officer. The assessee claimed that for the purpose of computing the capital gains in the hands of the assessee HUF, only 2/3 of the sale consideration of Rs. 64,80,000/-amounting to Rs. 43,20,000/- should be taken into account. The assessee pleaded that after the death of Sri Dharam Pal Singh, Karta of the family, his share should be excluded in view of the provisions of Section 6 of the Hindu Succession Act. This plea was rejected by the Assessing Officer, but was accepted in appeal, filed by the assessee. The Commissioner of Income Tax (Appeals) held that after the death of Dharam Pal singh, the Karta of the HUF, the HUFs property stood reduced to the extent of his share which was 1/3 of the total property. The Tribunal also agreed with the view point of the CIT (Appeals ).

( 4 ) WE have heard Sri A. N. Mahajan, learned Standing Counsel for the Department. None appeared on behalf of the assessee/respondent.

( 5 ) SECTION 6 of the Hindu Succession Act provides devolution of interest in coparcenery property. It says that when a male Hindu dies after commencement of the Hindu Succession Act his interest in a Mitakshara coparcenery property shall devolve by the survivorship upon the surviving members of the coparcenery property and not in accordance with the Hindu Succession act. But it is subject to a proviso which provides that if the deceased had left him surviving a family relative specified Clause I of the schedule or a male relative specified in that clause, claims, through such female relative, the interest of the deceased in the Mitakshara coparcernery property shall devolve by the testament or intestate succession as the case may be, under the hindu Succession Act and not by survivorship. Explanation I to Section 6 of the Hindu succession Act quoted below is the provision on which the assessee successfully relied upon before the Tribunal.

( 6 ) EXPLANATION 1 to Section 6 of the Hindu Succession Act (SIC) as follows :

"for the purpose of this Section interest of Hindu Mitakshara coparcener shall he deemed to be share in the property that would have been allotted to him if a partition of a property had taken place immediately before his death irrespective of whether he was entitled to claim or not"

( 7 ) THE Section deals with the succession and has bearing on other branches of Hindu law, such as joint family, adoption and maintenance and lays down rules of far reaching consequences. The assessee on the basis of the aforesaid explanation submitted before the Tribunal that where a coparcener dies the Mitakshara coparcenery ancestral property becomes disrupted and there is a deemed partition between t

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