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JUDGMENT Pathak, J. - Three questions have been referred by the Income-tax Appellate Tribunal under section 66(1), Indian Income-tax Act, 1922. They are: "1.Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the assessee was not entitled to the relief under section 25(4) in the year 1949-50? 2.Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the succession took place on October 12, 1948, and, consequently the benefit of section 25(4) could be availed of only in the year 1950-51? 3.Whether, on the facts and circumstances of the case, the Tribunal was right in holding that the sum of Rs. 4,810 was rightly taxed and as profit under section 10(2)(vii), second proviso, of the Indian Income-tax Act, 1922? " The assessee is a Hindu undivided family carrying on business under the name and style M/s. Badri Prasad Jagan Prasad, Agra. It has a branch styled as M/s. Jagan Prasad Shiv Prasad of Achnera. The assessee was assessed under the Indian Income-tax Act, 1918. In assessment proceedings for the assessment year 1949-50, the relevant previous year being the year commencing October 24, 1947, and ending October 11, 1948, the assessee alleged that on October 11, 1948, there was a partial partition in the family and various businesses owned by the family were divided through entries made in the account books. A partnership firm was constituted to carry on those businesses and succeeded the family on October 12, 1948. On May 10, 1949, the assessee filed an application before the Income-tax Officer claiming the benefit of section 25(4), Indian Income-tax Act, 1922. The Income-tax Officer rejected the application. On appeal, the Appellate Assistant Commissioner of Income-tax set aside the order and called for a remand report from the Income-tax Officer. The report submitted by the Income-tax Officer set out that the partnership firm succeeded to the business of the family on October 12, 1948. The Appellate Assistant Commissioner then held that as the succession had taken place on a day of the previous year relevant to the assessment year 1950-51 the claim could not be…

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