Dulat, J.- ( 1 ) THIS is a reference undersection 66 of the Inconne-tax Act. The assessee is Lala Daulat Ramnarula and this reference arises out of the assessment of income-taxin respect of the assessment year 1951-52, the relevant accountingyear being the financial year ending the 31/03/1951. Theassessee had several sources of income and one of them was his partner-ship in a firm called Daulat Ram Hans Raj and Co. In that firm theassessee s share was shown as 47. 25 pies in a rupee, there being tenother partners holding various shares This partnership businessconcerned certain liquor contracts worked during the year, 1/04/1950 to 31/03/1951 It has been found that the assessee sshare of profit out of this partnership business ca to Rs. 1,34,944. 00 for the relevent year. When this profit was carried to theassessee s account and added to his other income, he protested,claiming that the whole of this income, Rs. 1,34 944. 00 was in realitynot solely his but there weie nine other shares in that income Insupport of this he produced a partnership deed dated the 30/03/1951 (Exhibit B) which among other things, said that the assessee,lala Daulat Ram and other persons had obtained an excise contractfor the sale of liquor for the year 1950-51 and that Lala Daulat Ramhad a share of Rs. 3/1 1, or in other words, 47. 25 pies, and furtherthat the other nine parties mentioned in the partnership dead of the 30/03/1951 were partners in the said share of Rs.-/3/11 inthe proportion mentioned in that deed Lala Daulat Rams share beingon1y-/l/3. This deed relied upon by the assessee also stated thatthe partnership was for the period of the liquor contract, that is, fromthe 1/04/1950 to the 31/03/1951. and the profit and lossin the share of Rs. /3/11 was to be divided in proportion to the share. held by the partnership including the assessee. The claim thus wasthat although in the partnership deed dated the 1/04/1950 (Exhibit A) concerning the liquor business the assessee was shown asowning 47. 25 share, which was of course the correct share of theassessee in relation to his other ten partners, in reality that that sharewas owned by himself and nine other persons in proportion to theshares mentioned in the second deed dated the 30/03/1951 (Exhibit B ). He, therefore, contended before the Income-tax Officerthat the whole of the income from the share of 47. He, therefore, contended before the Income-tax Officerthat the whole of the income from the share of 47. 25 piesshould not be taken as his income for the purposes of assessment but only a part of it in accordance with the shares mentionedin the second deed (Exhibit B) should be accepted as his real income. The Income-tax Officer rejected that claim holding that the secondpartnership deed (Exhibit B) was not genuine. When the matterwas taken by the assessee to the Income-Tax Appellate Tribunal, it wasassumed by that Tribunal that the second partnership deed (Exhibit B)was genuine, bat the Tribunal, in spite of that, held as a matter oflaw that the whole of the income falling to the share of the assessee inaccordance with the first partnership deed, that is, 47. 25 pies, mustbe deemed to be his own income and assessable as such. Beforethe learned Tribunal reliance was placed on behalf of the assessee ona decision of the Bombay High Court, Ratilal B. Daftari v. Commissionerof Income-tax, which did support the assess s contention, but thetribunal chose to rely on a decision of the Calcutta High Court inmahaliarm Sanihalia v. Commissioner of Income-tax, as it felt thatthe second case was more appropriately applicable. The Tribunalobserved that these two decisions of the Bombay and the Calcuttahigh Coarts were in conflict and because of that readily agreed that aquestion of law did arise in the case and, therefore, when the assesseeasked the Tribunal to refer the question of law to this Court, it madea direction to that effect framing the question of law in these terms. "whether on the facts of this case the entire sum of Rs. 1,34,944/-, being the assessee s 47,25/192 share in the registered firmof Daulat Ram Hans Raj and Co. , has to be included in the computation of the assessee s total income or only 15/47. 25 of it ?" ( 2 ) WE have to start with the assumption made by the Appellatetribunal that the deed of partnership dated 30/03/1951 (Exhibitb) is genuine, which means that the material statements contained in itare true. , has to be included in the computation of the assessee s total income or only 15/47. 25 of it ?" ( 2 ) WE have to start with the assumption made by the Appellatetribunal that the deed of partnership dated 30/03/1951 (Exhibitb) is genuine, which means that the material statements contained in itare true. That deed says that the parties 1 to 9, apart from theassessee, were partners in the share of Re.-/3/ 11 held by the assesseein the partnership firm constituted by the deed of the 1/04/1950 (Exhibit A) and that the profits and losses arising out of that share wereto be divided among the ten partners in certain proportions If thisstatement is true, as it must be assumed, then it seems to follow that theshare standing in the name of assessee, that is, 47. 25 pies, in the partnership firm, Daulat Ram Hans Raj and Co. , was not entirely the propertyof the assessee but of himself and nine other persons mentioned in thesecond deed of the 30th March 1951. It would follow from this that theincome derived from that share was the income of the assessee and nineother persons in certain proportions. There is. therefore, a diversionof the income at its source, and, since what is liable to tax in the handsof the assessee is only his own income, the assessee cannot be taxedbeyond what his real income is out of that share-47. 25 pies. This wasthe line of argument accepted by the Bombay High Court in Ritilal B. Daftari v. Commissioner of Income-tax. The assessee in that case wasa partner in a registered partnership and in accordance with the deedof partnership his share of the profit was determined as Rs. 14. 661. 00. The asseesee contended that the whole of that amount did not belong tohim but only two-fifths of it, and he relied upon an agreement betweenhimself and four others, which agreement provided that the five partieswere to share the profit in proportion to their contributions. 14. 661. 00. The asseesee contended that the whole of that amount did not belong tohim but only two-fifths of it, and he relied upon an agreement betweenhimself and four others, which agreement provided that the five partieswere to share the profit in proportion to their contributions. The Highcourt held that "even in the case of the assessmentof a. partner of aregistered firm what was to be considered was not the income allocatedto his share by employing the machinery of section 23 (5) (a) but his realincome and that real income was what remained after deducting theamounts which might be said to have been diverted and never constitutedhis real income and such amounts would have to be excluded to ascertainhis real income. " The leading authority on this matter is the dicision ofthe Privy Council Raja Bejoy Singh Dadhuria v Commissioner of Income-tax. Bengal which has been approved by our Supreme Court. Lordmamillan said in that case that when income-tax Act subjects tocharge all income of individual it is what reaches the individual asincome which it is intended to charge. " What, therefore, is not theincome of the assessee, cannot be charged to income-tax. The position,of course, is different where an assessee in order to discharge anobligation legal or contractual, disposes of his own income in a particularmanner, for such disposal is not diversion of the income at itssource. The line of distinction, as pointed out by the Supreme Courtin Commissioner of Income-tax Bombay City II v Silaldas Tirathdaslies "between an amount which a person is obliged to apply outof his income and an amount which by the nature of the obligationcannot be said to be part of the income of the assessee. The Incometax Appellate Tribunal thought that this decision of the Supreme Court (Commissioner of Income-Tax, Bombay v. Sitaldas Tirthidas) shakes theauthority of the Bombay High Court decision in Ratilal B. Daftari v. Commissioner of Income- Tax as Sitaldas Tirathdas s case had been mentioned in Ratilal B. Daftari s case and the decision of the Bombay Highcourt in Sitaldas Tirathdas s case was reversed by the Supreme Court. Actually, however, it appears that the principle on which the Bombayhigh Court depended, when deciding Ratilal B. Daftari s case wasa firmed by the Supreme Court in Sitaldas Tirathdass case, the principlebeing the same as stated in Raja Bejoy Singh Dadhuria s case. Actually, however, it appears that the principle on which the Bombayhigh Court depended, when deciding Ratilal B. Daftari s case wasa firmed by the Supreme Court in Sitaldas Tirathdass case, the principlebeing the same as stated in Raja Bejoy Singh Dadhuria s case. Whatwas found by the Supreme Court was that that Dadhuria s case wasnot applicable to the facts of Sitaldas Tirathdass case and indeed thefacts were different. The assessee, Sitaldas Tirathdas, derived incomefrom various sources and that income was correctly computed by theincome-tax authorities. His wife and children had. however, obtaineda decree from a Civil Court for maintenance and the assessee claimedthat as he was obliged to pay maintenance under the order of a Court,the amount of maintenance should not be considered his income. Thebombay High Court apprently accepted that submission but the Supremecourt held to the contrary, the reason being that the decretal amountwas not a charge on the property, as it has been in Raja Bejoy Singhdudhuria s case. It is clear that on the facts of Sitaldas Tirathdas scase the assessee was merely obliged to dispose of his own income in aparticular manner and it could not be said that the income itself wasthe income of his wife and children. No reference was made by thesupreme Court to the case of Ratilal B. Daftri, and the decision restedon the ground that although there was an obligation on the assessee topay maintenance to his wife and children, that was an obligation todispose of his own income in a particular manner. In view of this decisionmr. Hardy on behalf of the Income-Tax Department presses us to holdthat by the partnership deed of the 30/03/1951 the present assesseemerely undertook to divide his income among a number of personsincluding himself and this was, therefore, a disposal of his own incomein a particular manner. He relies for this submission on the statementin the partnership deed that the profits and losses will be divided incertain proportions. The deed of the 30/03/1951 does indeed sayso, but before that it says quite clearly, what Mr. Hardy s argumentignores, that the share itself, from which income arises, was the propertyof all the partners mentioned in the deed. He relies for this submission on the statementin the partnership deed that the profits and losses will be divided incertain proportions. The deed of the 30/03/1951 does indeed sayso, but before that it says quite clearly, what Mr. Hardy s argumentignores, that the share itself, from which income arises, was the propertyof all the partners mentioned in the deed. The words of the deed are- "whereas L. Daulat Ram party of the 10th part and otherpersons obtained an excise contract lor the sale of liquor for theyear 1950-51 for Bela Road, Sadar Bazar, Pahar Ganj, Subzi Mandi,gole Market and Karol Bagh Shops (this refers to the liquor contract obtained by the partnership film, Daulat Ram Hans Raj and Co.)and WHEREAS the said L. Daulat Ram has a share of Rs. 3/11in the said contract and WHEREAS parties from 1st to 9th partsare partners in the said share of Rs.-/3/11 in the proportion mentioned herein. "if this statement is true, then no doubt remains that the personsmentioned in the deed of the 30/03/1951 were the owners of theshare of Rs. 3/11, in other words, 47,25 pies in the firm, Daulatram Hans Raj and Co. , and once that is clear, it must follow that theincome from that share was the income of all the persons mentioned inthe deed. On a reading of the deed (Exhibit B), there is in my opinion,no escape from the conclusion that the 47. 25 pies share in the firm,daulat Ram Hans Raj and Co. , was during the relevant period the property of not only the present assessee but also of the other personsmentioned in the deed (Exhibit B) and, in reality, therefore the incomearising out of that share was not solely the income of the assessee butonly a part of that income was his real income. ( 3 ) IT remains to consider the Calcutta decision on which theappellate Tribunal and also Mr. Hardy before us rely. The case isreported as Mahaliram Santhalia v. Commissioner of Income. tax. Thefacts of that case were similar to the facts of Ratilal B. Daftari s case. Mahaliram Santhalia, the assessee, was a partner in a firm called thebenares Steel Rolling Mills and, when an application for its registration was made, the assessee stated that he was a partner of the firmin his individual capacity . tax. Thefacts of that case were similar to the facts of Ratilal B. Daftari s case. Mahaliram Santhalia, the assessee, was a partner in a firm called thebenares Steel Rolling Mills and, when an application for its registration was made, the assessee stated that he was a partner of the firmin his individual capacity . Later on, however, when the incomefalling to his share as mentioned in the partnership deed was taken tohis personal account and charged to income-tax, he claimed that theshare standing in his name did not belong solely to him but was theproperty of another firm called Messrs Radhakisen Santhalia of whichhe was also a partner and only his proportionate share in the incomeshould be assessed This claim was negatived by the Calcutta Highcourt. The learned Judges first observed that the assessee, having atone stage stated that he was a partner of the Benares Steel Rollingmills in the individual capacity , could not be later permitted toresile from it and allege to the contrary. The learned Judges thenwent on to consider the scheme of the Income Tax Act contained insection 23 and they held that under the terms of the Act once theshare of a partner in a registered firm was determined and his incomein accordance with that share computed, then that income had necessarily to be included in his total income and in no circumstancescould any deduction be allowed, and therefore went on to hold thatany agreement, which the assessee may make with other persons,could only b treated as an agreement to dispose of his ownincomeand no question of diversion by superior title could arise. Theargument adopted by the Calcutta High Court seem to carry twoclear implications- (1) that a person in a firm, which is granted registration under the Income Tax Act, cannot validly be a partner insub-partnership concerning the share held in his name, and (2) thatin the case of a partnership, which is granted registration, the incomefalling to the share of a partner has necessarily to be treated as hisown income even if in fact it is not so, and he is not to be allowed toprove that that income is not entirely his own. I feel doubtful aboutthe validity of these implications The first clashes with the opinonof the Supreme Court expressed recently in Commissioner of Incometax, Madras v. Sivakasi Match Exporting Co. I feel doubtful aboutthe validity of these implications The first clashes with the opinonof the Supreme Court expressed recently in Commissioner of Incometax, Madras v. Sivakasi Match Exporting Co. where Subba Rao J. said that "there was no prohibition under the Partnership Act againsta partner or partners of other firms combining together to form aseparate partnership to carry on a different business. The fact thatsuch a partner entered into a sub partnership with others in respectof his share did not detract from the validity of the partnership. "a somewhat similar opinion was expressed in a more recent decision, Commissioner of Income Tax, Gujarat v. A Abdul Rahim and Co. Thesecond imptication clashes with the main principle laid down in Rajabejoy Singh Dudharia s case. that if is only the income of the assesseethat is chargeable to tax under the Income Tax Act. The Incometax Appellate Tribunal preferred the Calcutta view to that of thebombay Court, but I find the reasoning of the Bombay Court inratilal B Daftari s case more in accord with the reality of the situation and the true intent of the Income Tax Act. The real questionin my opinion is this : Did the share under discussion, that is 47. 25pies, in the firm of Daulat Ram Hans Raj and Co. belong entirely tothe assessee or did it belong to him and nine other persons, his sharebeing only 15/47 25 pies? The answer to that question turns on themeaning of the deed of the 30/03/1951 (Exhibit B ). Mr. Hardysays that the share itself belonged to the assessee and by the deed (Exhibit B) the assessee merely agreed with certain other persons todivide the profit from that share among ten persons including himself. Mr. Bajaj, on the other hand, contends that the true meaningof the deed (Exhibit B) is that the share itself was the property ofthe ten persons named in that document. The deed (Exhibit B), inmy opinion, says clearly that the persons named there were the ownersof that share and if that is correct, then the income from the sharemust be taken to be the income of not only the assessee but of all theten persons in proportion to the shares mentioned in the deed, Ithus find myself of the same opinion, and if I may say 90 for the same reasons. as mentioned by the Bombay High Court, in Ratilal B Dafaris case. as mentioned by the Bombay High Court, in Ratilal B Dafaris case. On the assumption therefore, that the deed (Exhibit B) dated the 30/03/1951 is genuinei would, in answer to the question posed by the Income Tax Appellate Tribunal, say that on the facts of the case the entire sum ofra. 1,34,944/- cannot be included in the computation of the assessee stotal income but only 15/47. 25 of it. The asseasee will his costof the reference assessed at Rs. 250. 00. ( 4 ) I agree.