A HUF comes into existence when a single coparcener marries, as the wife along with her husband constitutes a joint Hindu family.

C.S.P. Singh, J.

1. THE assessee, who is a partner in the firm, Ayodhya Prasad Gopinath, filed a return showing an income of Rs. 17,951 being share income from that firm. He showed his status as that of a HUF consisting of himself and his wife. THE assessee had, before becoming a partner in the firm, separated from his father and brothers, who formed a HUF on 17th of October, 1962, and an amount of Rs. 3,216 was given to him as his share. This amount was invested by the assessee in the firm, Ayodhya Prasad Gopinath. At the time when he became a partner of this firm, he was unmarried but during the previous year relevant to the assessment year 1971-72, he married and it was for this reason that he claimed that the share income received from the firm should be taxed in the hands of the HUF consisting of himself and his wife. THE ITO, however, did not accept this plea and taxed him in the status of an individual as in the earlier assessment years. THE decision of the ITO was reversed by the AAC. An appeal filed by the department has, however, succeeded. THE Tribunal has now, at the instance of the assessee, referred the following question for the opinion of this court :

"Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the share income from the firm, Ayodhya Prasad Gopinath, could be assessed in the hands of the assessee in his capacity as ' individual '."

2. COUNSEL for the assessee urged that as the nucleus for the investment made by the assessee in the firm came from the assets of the HUF the amount received by the assessee was ancestral property in his hands and as such the income that accrued from the investment of this money in the firm had to be taxed in the hands of the assessee in the status of a HUF and not as an individual. In the alternative, it is also urged that in any event if the share income from the firm could be treated as the individual income of the assessee in the earlier assessment years, it had to be treated as the income of the HUF as from May 13, 1970, when the assessee married.

In the present reference, we are not concerned with the correctness or otherwise of the assessments made in the earlier assessment years where the assessee was assessed in the status of an individual. In the reference, we have to consider whether the assessment should be made in the status of a HUF family on account of the assessee's marriage.

3. TWO questions have to be determined by us in order to resolve this controversy. Firstly, as to whether an individual coparcener on a partition constitutes a HUF for the purposes of the I.T. Act, 1961, and secondly, whether on the marriage of the individual coparcener, a HUF comes into existence so as to entitle an assessee to claim the advantage of being assessed in the status of a HUF. In order to determine these questions it will be useful to refer to certain decisions of the Supreme Court which have considered the difference between a coparcenary and a HUF and have also indicated the general category of persons who go to constitute a HUF.

4. WE will begin by considering the decision of the Supreme Court in the case of Gowli Buddanna v. CIT [1966] 60 ITR 293 (SC). One of the questions that their Lordships had to consider in that case was as to whether it was necessary that there should be two male members in order to constitute a HUF. While considering this controversy their Lordships considered the difference between a Hindu coparcenary and a Hindu joint family and also categorised the persons who go to constitute a HUF. It was observed (pp. 295, 296) :

"The first contention is plainly unsustainable. Under Section 3 of the Income-tax Act, not a Hindu coparcenary but a Hindu undivided family is one of the assessable entities. A Hindu joint family consists of all persons lineally descended from a common ancestor, and includes their wives and unmarried daughters. A Hindu coparcenary is a much narrower body than the joint family ; it