COMMISSIONER OF INCOME TAX Vs. MEHTA N D

JUDGEMENT

(1.) THE assessee filed return of income on 30th June 1969, showing total income of Rs. 8,294 and, therefore, a revised return on 3 -12 -1969 showing total income of Rs. 4,356. The assessee contended that she had no interest in the property left by her husband who died intestate on 9 -8 -1955 leaving self -acquired property. The deceased had left behind him his son and his widow who is the present assessee. The ITO held that half of the share of the self -acquired property of the deceased was assessable in the hands of the assessee as her absolute property and assessed her income accordingly by adding half share in the properties self -acquired and left by her deceased husband.

(2.) THE Appellate Assistant Commissioner upheld the decision of the ITO, holding that the ITO had rightly assessed the one -half share of the income of the said property in the hands of the assessee. On further appeal, the Tribunal held that the lower authorities were not right in holding that the income from property inherited by the assessee should be assessed as an individual income and not as HUF income. The Tribunal held that, in view of the decision of this Court in C.W.T. v. Harshadlal Manilal (97 ITR 86) the authorities below were wrong in holding that the assessee had held one -half share in the income of the self -acquired property of her deceased husband and that the said share belonged to her as her absolute property. Pursuant to the directions of this Court, the Tribunal has referred for the opinion of the High Court, the following two questions under Section 256(1) of the Income -Tax Act, 1961 (hereinafter referred to as 'the said Act'):

(3.) IT was contended by the learned Counsel Mr. Divetia, appearing for the assessee that the separate property inherited by the widow under subsection (1) of Section 3 of the Act of 1937 will be part of the HUF property since subsection (3) of Section 3 provides that interest devolving on a Hindu widow under the provisions of Section 3 shall be the limited interest known as 'Hindu Woman's estate' and that she has a right of claiming partition. He submitted that, just as the interest in a Hindu Joint Family property devolving on a widow is the same interest as that of her husband who died intestate, and, therefore, she has no defined share in respect of such interest, even when the separate property devolves on her she would not have any defined interest in respect of such property which should be treated as a part of the HUF property.