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TMI Blog1975 (11) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... ndu law and were assessed as a Hindu undivided family for the assessment year 1948-49, the relevant previous year being the Bengali year 1354, which corresponds to the period from April 14, 1947, to April 13, 1948. A sum of Rs. 1,96,045 was added by the Income-tax Officer to the income of the undivided family in the aforesaid assessment year as income from agricultural activities carried on in Pakistan. The land out of which this income had accrued fell within the territory of Pakistan on the partition of India in 1947. It is not disputed at this stage that following the amendment in 1950 of the definition of "agricultural income" in the Income-tax Act this income which accrued in Pakistan was taxable under the Indian Income-tax Act, 1922. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provisions of section 25A of the Indian Income-tax Act, 1922, which the Appellate Assistant Commissioner referred was not relevant and he had failed to appreciate the assessee's case which was not that the land from which the income in question had accrued was originally a joint family property and was subsequently partitioned, that the department had to prove that the agricultural income in Pakistan belonged not to the appellants in severalty as appearing from the order of the Agricultural Income-tax Officer of Pakistan but to the Hindu undivided family and the Income-tax Officer was wrong in assessing this income in the hands of the assessee without discharging the onus that lay upon him. On these findings the Tribunal held that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id income from the assessable income of the family ?" The two references were heard and disposed of by the High Court by a common judgment. The High Court observed that the question whether the agricultural land in Pakistan belonged to the Hindu undivided family or to its members individually was "a crucial question of fact" and was of opinion that the Tribunal was wrong in allowing the assessee to raise this question which was not raised before the Income-tax Officer. The High Court held that the conclusion reached by the Tribunal that the members of the undivided family owned the property in their individual capacity "was not supported by any fact or evidence". According to the High Court the assessee's claim could succeed only if the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r had assessed the income in the hands of the individual members of the family. It is also true that the order of the Pakistan Agricultural Income-tax Officer was not conclusive on the point because "Hindu undivided family" as defined in section 2(8) of the Bengal Agricultural Income-tax Act, 1944, means a "Hindu undivided family governed by Mitakshara law" and does not include a Dayabhaga undivided family; therefore, even if the income was of the undivided family of the appellants, the Pakistan Agricultural Income-tax Officer had to assess it in the hands of the individual members of the family who belong to the Dayabhaga school of Hindu law. But the claim that the income belonged to the appellants in their individual capacity was admitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Tribunal cannot, therefore, be said to be without any basis. In our opinion, the approach of the High Court was incorrect and this has vitiated the answers it has given to the questions referred to it. It is well-settled that in a reference under section 66 of the Act, the High Court exercises advisory jurisdiction and does not function as a court of appeal. The nature of the High Court's jurisdiction in dealing with references under section 66 was explained by this court in Commissioner of Income-tax v. Calcutta Agency Ltd. as follows : "The jurisdiction of the High Court in the matter of income-tax references is an advisory jurisdiction and under the Act the decision of the Tribunal on facts is final, unless it can be successfully ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y lay down the law applicable to the facts found by the Tribunal. The High Court and the Supreme Court, in an appeal against the judgment of the High Court given in a reference under section 66 of the Act, are not constituted courts of appeal against the order of the Tribunal. These courts only exercise advisory jurisdiction in such references. The High Court in a reference under section 66 of the Act can, however, go into the question as to whether the conclusion of the Tribunal on a question of fact is based upon relevant evidence............The fact that the High Court on appreciation of evidence would have arrived at a conclusion of fact different from that of the Tribunal did not warrant interference with the finding of the Tribunal." ..... X X X X Extracts X X X X X X X X Extracts X X X X
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