B. N. Sapru, J. - The following question of law has been referred to this Court for opinion :
'Whether upon the facts and circumstances of the case the Tribunal was right in law in coming to the finding that Smt. Gangotri Devi was benamidar for her husband in the firm Bhojanagarwala and Brothers ?'
2. There was a firm stayed as M/s. Bhojanagarwala and Brothers, in which there were two partners, viz., Sri Hiralal and Smt. Gangotri Devi, wife of Sri Gajanand. It was claimed on behalf of the assessee that Smt. Gangotri Devi was a partner in the said firm in her own right and not a benamidar on behalf of the assessee. This claim was rejected by the Department for a number of years. In the assessment year 1961-62 it was again claimed that Smt. Gangotri Devi was a partner in the firm in her own right. This claim was rejected in computing the net wealth of the assessee. The Wealth Tax Officer included a sum of Rs. 89,512/- as the assessees interest shown in the name of his wife Smt. Gangotri Devi in the partnership business.
3. The matter went up ultimately to the Tribunal which rejected the case set up by the assessee.
4. The assessee asked for a reference. The reference was accordingly made. When the case came up for hearing before this Court, a supplementary statement of the case was called for by an order dated 22-8-1973.
5. The Tribunal has submitted a supplementary statement of the case. From that supplementary statement it appears that the Tribunal had rejected the claim of the assessee in accordance with its own previous decisions for the assessment years 1943-44 and 1944-45 in which the claim of the assessee had been rejected. The Tribunal in its supplementary statement has said that the assessee had applied for a reference. In that reference which was I.T.R. No. 409 of 1960, the High Court held that Smt. Gangotri Devi was not a benamidar for her husband, the assessee, in the firm Bhojanagarwala and Brothers. In the supplementary statement it has been specifically stated that the Tribunal decided the appeal on the basis of its previous decisions in respect of the assessment years 1943-44 and 1944-45.
6. Since the High Court has already held that Smt. Gangotri Devi was not a benamidar for her husband, viz., the assessee, it must be held in this case also that Smt. Gangotri Devi was not a benamidar for her husband. In the circumstances the question referred to has to be answered in the negative, in favour of the assessee and against the Department. The question is answered accordingly. The assessee is entitled to his costs, which is assessed at Rs. 200/-.