This petitioner is a Hindu undivided family, whose karta is one Chiranji Lal. Chiranji Lal derived income from his share in a business. The Hindu undivided family owned some ancestral immoveable property. For the assessment year 1946-47 and 1947-48 separate returns were filed by Chiranji Lal in respect of the income from property. In those returns Chiranji Lal mentioned that the status was 'joint with sons'. He did not indicate in the return that he was the karta of the family. For the assessment year 1948-49 two returns were filed, one in the status of an individual and the other in the status of 'coowners with one-fifth share each' in the name of 'Chiranji Lal, Rameshwar Prasad, Om Prakash, Chandra Prakash and Srimati Sunhery Devi'. The return was signed by the several persons who described themselves as co-owners. It was not mentioned that they constituted a Hindu undivided family and that the return was filed by the family.
The Income-tax Officer made an assessment order against Chiranji Lal for the assessment years 1946-47, 1947-48 and 1948-49, in his status as an individual in respect of the income derived by him from his share in the partnership business. Subsequently, the Income-tax Officer issued notices under section 34 in respect of the three assessment years and included the income from property also in those assessments. The assessment orders declared the status to be that of an 'individual'. Chiranji Lal appealed against the assessments contending that the income from the property could not be clubbed together with his income from the share in the business. The appeals were dismissed by the Appellate Assistant Commissioner. He then appealed to the Income-tax Appellate Tribunal. The Appellate Tribunal held that the income from the share in the business belonged to the Hindu undivided family and was not the individual income of Chiranji Lal. It pointed out that the returns, on which the assessments in question were made, were filed by the Hindu undivided family and that the Income-tax Officer intended to assess the Hindu undivided family, and it referred to the observation of the Appellate Assistant Commissioner that the description of the status of the assessee as an 'individual' in the assessment orders was an oversight. The Appellate Tribunal pointed out further that it was for the Appellate Assistant Commissioner, when he found that the assessments in the status of an 'individual' were made by an oversight, to have corrected the mistake and rectified the description at the top of the assessment orders from 'individual' to 'Hindu undivided family'. The Appellate Tribunal now directed that to be done. Against the order of the Appellate Tribunal a reference was brought to this court. Three questions were referred'
'1. Whether there was any material to justify the view that the income from business could be treated as income of the Hindu undivided family of which Chiranji Lal was the karta
2. Whether there was any justification in law in making a joint assessment of the share incomes of Chiranji Lal, Rameshwar Prasad and Om Prakash and the income from property received by the Hindu undivided family headed by Shri Chiranji Lal
3. Whether the Tribunal could direct the authorities below to change the status of the assessee from individual to Hindu undivided family ?'.
On the first question this court held that there was no material to justify the view taken by the Tribunal that the income from the business could be treated as the income of the Hindu undivided family. On the second question it held that there was no justification for making a joint assessment of the share incomes of Chiranji Lal and his sons, Rameshwar Prasad and Om Prakash, along with the income from the property received by the Hindu undivided family. Finally, on the third question it held that the Appellate Tribunal had jurisdiction to alter the status of the assessee from 'individual' to 'Hindu undivided family'.
Thereafter the Appellate Tribunal proceeded to dispose of the case under section 66(5) of the Indian Income-tax Act, 1922, and purporting to act in conformity with the opinion expressed by this court it made an order on October 20, 1965, holding that the income from business could not be treated as income from the Hindu undivided family and there was no justification for making a joint assessment of the share income of Chiranji Lal and his two sons with the income from the property received by the Hindu undivided family. It directed the Income-tax Officer to give effect to that order.
Upon that the Income-tax Officer made an order on May 25, 1966, adopting the status of the assessee as that of a Hindu undivided family.
The petitioner applies for certiorari against the orders of the Appellate Tribunal dated October 20, 1965, and of the Income-tax Officer dated May 25, 1966.
The contention of the petitioners is that the Appellate Tribunal should have quashed the proceedings when the appeals were heard under section 66(5), because the notices under section 34, in consequence of which the returns were filed, were issued to Chiranji Lal as an individual. No assessment under section 34, it is urged, could be made against the Hindu undivided family in the absence of a notice under section 34 addressed to it. It is further contended that the Hindu undivided family having filed the returns for the assessment years 1946-47 to 1948-49 no assessment under section 34 could be made against the Hindu undivided family when those returns were still pending. Now both these contentions involve questions which could have been appropriately raised before the Appellate Tribunal when the appeals were heard by it. In the reference made to this court out of the order of the Tribunal, the Appellate Tribunal had held in its orders under section 33(4) on the appeals before it that the assessments under section 34 were intended to be made upon the Hindu undivided family and that, as the Income-tax Officer had erroneously described the assessee as an individual it directed the status to be altered to that of a Hindu undivided family. Whether the assessments under section 34 could be made against the Hindu undivided family when the notices under section 34 were addressed to an individual, and when the original returns said to have been made by the Hindu undivided family were still pending are questions which could have been agitated before the Appellate Tribunal and thereafter in the reference before this court. That was not done. Assuming that the questions could not be raised before the Appellate Tribunal and therefore could not be referred to this court, they were certainly questions which could have been raised before the Appellate Tribunal in the proceedings under section 66(5) if they arose while giving effect to the opinion of this court, and upon an adverse decision the questions could have been brought in reference to this court. See Income-tax Appellate Tribunal v. S.C. Cambatta & Co Ltd. and Indian Molasses Co. Private Ltd. v. Commissioner of Income-tax. This was also not done. It is not possible now the permit the petitioner to raise those questions.
The petition fails and is dismissed with costs.