PRAKASH KRISHNA, J.

( 1 ) THE Income Tax Appellate Tribunal, New Delhi has referred the Knowing two questions 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.

(1) Whether on the facts and in the circumstances of the case , the Income Tax Appellate tribunal was legally correct to hold that on the death of Shri Prem Sundar a deemed partition had taken place which is recognized for all purposes and the property which was hitherto the huf property no longer remains the property of HUF?" (2) Whether on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal was legally correct to hold that Section 171 (9) has no applicability to the present case. ?

( 2 ) THE dispute relates to the assessment year 1982-83 and 1983-84.

( 3 ) BRIEFLY, stated the facts giving rise to the present reference are as follows :there was a Hindu undivided family comprising of Sri Prem Sundar as Karta, his wife Smt. Meera Prem Sundar and his minor son Master Sunil Prem Sundar. Sri Prem Sundar expired on 23rd June, 1978. The assessee claimed that on account of death of Karta, her right in HUF property was defined and as per provisions of Section 6 read with Explanation 1 of the Hindu succession Act, it was not necessary for her to claim any partition in the property of the HUF as per Section 171 (9) of the Income Tax Act. The assessee claimed to be governed by the mitakshara Coparcenary Law. The claim of the assessee was ultimately accepted by the tribunal. The controversy involved according to the assessee in the present reference is covered by the judgment of Supreme Court in the case of Gurupad Khandappa Megdum v. Hirabai khandappa Megdum and Ors. (1981) 129 I. T. R.-440.

( 4 ) WE have heard Sri A. N. Mahajan, learned Standing Counsel for the Department and Sri suyash Agrawal, learned counsel for 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 1 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 reads as follows : -.

"for the purpose of this Section interest of Hindu Mitakshara coparcener shall he deemed to he 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 the surviving coparceners. The basis contention of the assessee is that on account of Explanation 1, which provides deemed partition, 1/3rd share of deceased is liable to be excluded and is not taxable for the purpose of computation of capital gains at the hands of the assessee/respondent (HUF ). In order to examine the validity of this submission, it

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