GOPIRAM BHAGWAN DAS Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) In this case the assessee is a Hindu undivided family of which Banarsilal and Lakhiram are junior coparceners. For the assessment year 1946 -47, an estimate of the income was made by the Income -tax Department at Rs. 25,883/ - which was later modified on appeal to Rs. 23,883/ -. After making the original estimate the Income -tax Department received an information that in the relevant accounting year two collieries had been acquired by the Hindu undivided family in the names of Banarsilal and Lakhirarn for a sum of Rs. 15,000/ -. Proceeding under Sec. 34 was accordingly instituted against the assessee. The assessee explained that the collieries were not the properties of the Hindu undivided family but were separate properties of Banarsilal and Lakhiram. With regard to source of money, the statement of the assessee was that gold weighing 260 bharis was purchased on 12 -2 -1929, and ornaments prepared out of the gold were presented to the wives of Banarsilal and Lakhiram; that gold ornaments weighing 172 bharis were given to Banarsilal's wife and gold ornaments weighing 95 bharis were given to Lakhiram's wife that on 28 -6 -1945, most of the ornaments were sold in Calcutta by Banarsilal and Lakhiram for Rs. 19,437/87 and that out of these ornaments the quota of Banarsilal was 160 bharis of gold which was sold for Rs. 12,440/ - and the quota of Lakhiram was 90 bharis of gold which was sold for Rs. 6,997/8/ -. In support of his explanation a voucher from Sheopujan Rai of Calcutta, dated 18 -6 -1945, was produced on behalf of the assessee. Banarsilal and Lakhiram were also examined before the Income -tax Officer as witnesses on behalf of the assessee. The statements of the two witnesses, Banarsilal and Lakhiram, were disbelieved by the Income -tax officer for several reasons. He also held that the voucher elated 28 -6 -1945, from Sheopujan Rai of Calcutta was unreliable. The finding of the Income -tax Officer was that the assessee had failed to prove that Banarsilal and Lakhirarn had acquired the two coal mines out of their separate funds and that neither Banarsilal nor Lakhiram had any separate source of income. The Income -tax Officer accordingly held that the amount of Rs. 15,000/ - was secreted income liable to be assessed in the hands of the Hindu undivided family. An appeal was taken by the assessee to the appellate Assistant Commissioner against the order of the Income -tax Officer, but the apneal was dismissed by the Appellate Assistant Commissioner, and the order of the Income -tax Officer was affirmed. The assessee took a further appeal to the Income -tax Appellate Tribunal, and the contention of the assessee was that the properties were not the acquisitions of the Hindu undivided family and the finding of the Appellate Commissioner on that point was not supported by any material. Reference was made on behalf of the assessee to the statement in the partition deed dated 13 -9 -1952, that Banarsi Lal and Lakhiram had acquired the property out of their separate earnings. The tribunal rejected the contention of the assesses on the ground that the statement in the deed of partition dated 13 -9 -1952, is contradicted by the explanation of the assesses that the coalfields were acquired from the stridhan properties of their wives. The finding of the Tribunal was that there was sufficient nucleus of the Hindu joint family to warrant the finding that the two coal mines had been acquired from the funds of the Hindu undivided family and that the assesses was not able to show that the junior members, Banarsilal and Lakhiram had any separate funds of their own. The Appellate Tribunal accordingly dismissed the appeal of the assesses and affirmed the finding of the Appellate Assistant Commissioner that the amount of Rs. 15,000/ - was represented the secreted profits liable to be taxed in the hands of the Hindu undivided family.

(2.) UNDER Sec. 66(2) of the Income -tax Act, the Income -tax Appellate Tribunal has stated a case on the following question of law and submitted it to the High Court : "Whether in the facts and circumstances of the case the amount of Rs. 15,000/ - representing the consideration for taking two leases, is liable to be assessed in the hands of the Hindu undivided family -

(3.) I shall now deal with the cases relied upon by the learned counsel on behalf of the assessee. In 1953 -24 I.T.R. 184 : (AIR 1953 All 773) the question at issue was whether the income of a minor coparcener of a Hindu undivided family from his share of the partnership business was really the income of the Hindu undivided family liable to be assessed in the hands of the Karta. It was held by the Allahabad High Court that there is no presumption that any business carried on by a member of a joint Hindu family was joint family business, and it was for those who allege that it was so to prove it. The decision of the Allahabad High Court was based upon the Privy Council case in Annamalai Chetty v. Subramanian Chetty AIR 1929 P.C. 1 where the proposition was stated that it was open to a member of the Hindu undivided family to carry on a business and there was no presumption that any such business belonged to the joint family. It is manifest that the ratio of the Allahabad decision, 1953 -24 I.T.R. 184 : (AIR 3953 All 773) has no application to the present case where the material facts arc different. Reference was also made on behalf of the assessees to 1955 -27 I.T.R. 348 : ((S) AIR 1955 Pat 102) in which the question for determination was whether the income of a member of a joint Hindu family from a partnership business in which he was a partner was joint family income. It was held by this High Court following the decision of the Privy Council in AIR 1929 P.C. 1, that there was no presumption of Hindu law that any business carried on by a member of a joint Hindu family was itself a joint family business. The decision of this case has also no bearing on the question presented for determination in the present case. Reliance was also placed on behalf of the assessee upon the decision of this High Court in 1955 -28 I.T.R. 167 : (AIR 1955 Pat 366). The principle laid down in that case is exactly the same as in 1955 -27 I.T.R. 348 : ((S) AIR 1955 Pat 102). The learned Judges who decided the case 1955 -28 I.T.R. 167 : (AIR 1955 Pat 366) expressly stated that the ratio of the decision in 1955 -27 I.T.R. 348 : ((S) AIR 1955 Pat 102) was also the basis of their decision. In my opinion, the present case does not fall within the principle laid down by any of these authorities, because the question at issue is not whether a business carried on by a coparcener of a Hindu undivided family is a joint family business.