JUDGMENT

NIAMATULLAH, J. - This is a reference u/s 66 (3) by the Income Tax Commissioner. There is a connected reference No. 40 of 1934. The assessee in the present case is a joint Hindu family represented by its karta, Lala Ramratan Das. The assessee in the connected case is a joint Hindu family represented by its karta, Lala Jaidayal. The two joint families entered into a partner ship having equal share and became a registered firm styled Jaidayal Madangopal. This registered firm (consisting of the two joint families as partners) became a partner in nine other unregistered firms. On a reference made by the Income Tax Commissioner on a previous occasion it has been held by a Bench of this Court that the registered firm (consisting of the two joint families) could not in law be a partner in the aforesaid nine unregistered firms. The result of this decision was that each of the two joint families was taken to be severally a partner in the nine unregistered firms and not as a component part of the registered firm.

A sum of Rs. 1,81,338 was received by the registered firm as its share of the profits from some of the unregistered firms of which it had become a partner. The share of each of the two joint families in such profit came to Rs. 90,669. This added to the other income of the joint family represented by L. Ramratan Das, gave a total of Rs. 98,409, on which the Income Tax Department assessed a super-tax after making allowance for Rs. 75,000 up to which a joint Hindu family is exempt from the payment of super-tax. An objection was taken on behalf of L. Ramratan Das to the sum of Rs. 90,669, being included part of the income of his joint family for the purpose of super-tax on the ground that the same was exempt from payment of super-tax u/s 55, Proviso, Income Tax Act. The objection was overruled. The Income Tax Commissioner was directed by an order of this Court dated 25th August, 1933, to submit a case for the determination of the following question :-

Whether the applicant is liable to pay super-tax on that part of its income which represents profits received by it from the unregistered firms in its capacity as a partner in the firm, Jai Dayal Madam Gopal ?

The income Tax Commissioner has recorded his opinion as regards the proper construction of the word "individual" occurring in the Proviso to Section 55 on which the decision of this case turns. Section 55 runs as follows :

In addition to the Income Tax charged for any year, there shall be charged, levied and paid for that year in respect of the total income of the previous year of any individual, Hindu undivided family, company, unregistered firm or other association of individuals, not being a registered firm, an additional duty of Income Tax (in this Act referred to as super-tax) at the rate or rates laid down for that year by Act of the Indian Legislature :

Provided that, where the profits and gains of an unregistered firm have been assessed to super-tax, super-tax shall not be payable by an individual having a share in the firm in respect of the amount of such profits and gains which is proportionate to his share."

The learned advocate for the department has strenuously contended that the word "individual" accruing in the Proviso must be assigned the same meaning as it bears in the main section. He points out that the word "individual" has been used in the section as not including a Hindu undivided family which is separately referred to, and contends that the same word occurring in the Proviso must be taken to be used in an exclusive sense. He also argues that the Legislature has not advisedly used in the Proviso the word "person" which includes a Hindu undivided family [Section 2 (9)]. As against this the learned advocate for the assessee lays stress on the fact that no reason can be suggested why a differential treatment should have been made in case of an individual, implying a man or a woman, and Hindu undivided family should have been made liable to pay super-tax a se