TMI Blog1975 (11) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... A J.- These two appeals, brought on certificates granted under section 66A(2) of the Indian Income-tax Act, 1922, arise out of a common judgment of the Calcutta High Court disposing of two references, one under sub-section (1) and the other under sub-section (2) of section 66 of the Act. The appellants are members of an undivided family governed by the Dayabhaga school of Hindu 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed by the Appellate Assistant Commissioner who did not accept the contention that the income belonged to each appellant individually, and referring to section 25A of the Income-tax Act, found the appellants' claim unsustainable in the absence of any case made by them that their joint properties had been partitioned. On further appeal by the assessee, the Tribunal found that 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l income in Pakistan belonged to the Hindu undivided family and still retained that character ? (c) If the answer to question No. 2 is in the negative, then, whether on the facts and in the circumstances of the case, the Tribunal was right in holding that the agricultural income in Pakistan did not belong to the assessee-Hindu undivided family and in directing exclusion of the said 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght in thinking that the assessee's case never was that the agricultural income did not belong to the Hindu undivided family but to its members in severalty. It is true, that the argument does not appear to have been made before the Income-tax Officer, but the order of the Pakistan Agricultural Income-tax Officer on which the Income-tax Officer in Calcutta relied shows that the former 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant Commissioner or the Tribunal on which a presumption might arise that the property was acquired with the income of some joint property which the appellants may have possessed. In the absence of any such evidence the burden cannot shift to the appellants to prove affirmatively that the property in question was acquired with the joint family funds. The conclusions of fact recorded by 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 app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Rameshwar Prasad Bagla v. Commissioner of Income-tax this court reiterated the law stated in Commissioner of Income-tax v. Calcutta Agency Ltd. and India Cements Ltd. v. Commissioner of Income-tax : "It is for the Tribunal to decide questions of fact, and the High Court in a reference under section 66 of the Act cannot go behind the Tribunal's findings of fact. The High Court can only 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 Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
