C. S. P. Singh, J. - The Income Tax Appellate Tribunal, Delhi Bench has at the instance of the assessee referred the following question :
'Whether on the facts and in the circumstances of the case, the income of the Aligarh firm business could be assessed in the hands of the assessee Hindu undivided family for assessment years 1945-46 and 1946-47 ?
Likewise at the instance of the Commissioner the Tribunal, Delhi Bench referred the following question :
'Whether on the facts and in the circumstances of the case, the Appellate Tribunal was correct in holding that the income from business in the name of M/s. Babu Lal Om Prakash was not includable in the assessees income for assessment years 1945-46 and 1946-47 ?
The reference in the present case relates to the assessment years 1945-46 and 1946-47. In the year 1944-45 a dispute has arisen between the assessee and the Department as to whether the income from M/s. Kharag Sen Jwala Prasad and Babu Ram could be assessed and included in the total income of the Hindu undivided family viz. the assessee in the present case. On reference it was held by this court that the business carried on in the name of Kharag Sen Jwala Prasad at Aligarh had on partition gone to the share of Jwala Prasad, and the business carried, on in the name of Babu Lal had been allotted to Sri Babu Lal. The controversy in the present reference is the same as in that decision. Following that decision we answer the first question in the negative in favour of the assessee and against the Department and the second question in the affirmative against the Department and in favour of the assessee. The assessee is entitled to his costs which we assess at Rs. 200/-. Counsels fee is assessed at the same figure.