(1.) In this case the assessee is a Hindu undivided family consisting of two brothers Gaya Prasad and Sital Prasad and their nephew Damodar Das. For the assessment year 1944-45 there was a claim made on behalf of the assessee under Section 25A(1), Income-tax Act. The claim was that the joint family property had been partitioned among Damodar Das," Gaya Prasad and Sital Prasad in definite shares. The Income-tax Officer rejected the claim made on behalf of the assessee. From the order of the Income-tax Officer the assessee took an appeal to the Appellate Assistant Commissioner. On 24-4-1950 the Appellate Assistant Commissioner allowed the appeal on the ground that the Income-tax Officer had made assessment on individual members for the share of the income of the Hindu joint family in the respective hands of the coparceners. The order of the Appellate Assistant Commissioner reads as follows:
(2.) In these circumstances the Tribunal has submitted the following question of law for the opinion of the High Court;
(3.) On behalf of the assessee Mr. Tarkeshwar Prasad presented the argument that the Tribunal has misconstrued the order of the Appellate Assistant Commissioner dated 24-4-1950. The argument of the learned Counsel was that properly construed the order of the Appellate Assistant Commissioner means that the case of the assessee with regard to partition among Damodar Das, Gaya Prasad and Sital Prasad was accepted and there was no direction to the Income-tax Officer to make a fresh enquiry on the point. Learned Counsel said that the Tribunal was wrong in holding that the matter was remanded by the Appellate Assistant Commissioner to the Income-tax Officer for passing a fresh order under Section 25A after making enquiry. We are unable to accept the argument addressed by Mr. Tarkeshwar Prasad as correct. Section 31(3)(e), Income-tax Act, states what are the powers granted to the Appellate Assistant Commissioner in deciding an appeal passed by the Income-tax Officer under Section 25A. Section 31(3)(e) provides that the Appellate Assistant Commissioner may confirm the order of the Income-tax Officer under Section 25A or he may cancel such order. But he has no power to modify or vary the order of the Income-tax. Officer. Should the Appellate Assistant Commissioner cancel the order there are two alternative courses which he may adopt. He may either direct the Income-tax Officer to make further enquiry and pass a fresh order; or lie may direct the Income-tax Officer to make an assessment in the manner laid down in Sub-section (2) of Section 25A. It is manifest in this case that the Appellate Assistant Commissioner has cancelled the order passed by the Income-tax Officer under Section 25A. It is equally manifest that the Appellate Assistant Commissioner has not expressly directed the Income-tax Officer to make, an assessment in the manner laid down in Section 25A(2). But Mr. Tarkeshwar Prasad claimed that the order of the Appellate Assistant Commissioner should, be interpreted to mean that an order under Section 25A (2) was passed. There are difficulties in accepting this argument. For the Appellate Assistant Commissioner has not discussed the merits of the claim of the assessee under Section 25A(1) in the course of his order. The only point upon which the Appellate Assistant Commissioner laid stress is the inconsistency between the order passed by the Income-tax Officer and his conduct in making the individual assessments as regards the three coparceners. The Appellate Assistant Commissioner has referred to this inconsistency and in the last part of his order has given a direction to the Income-tax Officer "to pass his order afresh so as to be consistent with the action subsequently taken by him in the case of assessments of the members." Literally interpreted this order means that the Income-tax Officer was directed to pass a fresh order under Section 25A(1) of the Act accepting the partition of the family as claimed on behalf of the assessee. But surely that could not have been the intention of the Appellate Assistant Commissioner. In the first place, Section 31(3)(e) does not provide for an order of this description, and, secondly, the Appellate Assistant Commissioner has discussed nowhere in the course of his order the merits of the claim put forward by the assessee on the question of partition. The order of the Appellate Assistant Commissioner cannot also be taken to mean that the Income-tax Officer was directed to proceed to assess the members in accordance with Section 25A (2) for no such direction is expressly or by implication given by the Appellate Assistant Commissioner. Reading the order of the Appellate Assistant Commissioner as a whole we are satisfied that the interpretation placed on it by the Tribunal is correct and that the intention of the Appellate Assistant Commissioner was to direct the Income-tax Officer to make a fresh enquiry into the claim of the assessee for partition under Section 25A and to record his order after making such enquiry. In our opinion the view taken by the Tribunal as to the interpretation of the order of the Appellate Assistant Commissioner dated 24-4-1950 is the correct view and the question referred to the High Court must be answered in favour of the Income-tax Department and against the assessee. The assessee must pay the costs of this reference; hearing fee Rs.250.00