SHARMA, J. — The Income-tax Appellate Tribunal, Jaipur Bench, Jaipur, on an application made to it under Section 256 (2) of the Income-tax. Act, 1961 (for short, the Act) by the Commissioner of Income-tax Jaipur (for short, CIT) has drawn up a statement of case and referred. the following question of law for opinion of this Court : — "Whether on the facts and in the circumstances of the case was the Tribunal justified in holding that the separate property of the deceased Shri L.K. Agarwal would constitute HUF property in the hands of his sons and grand-sons?" (2) For the assessment year 1977-78 the assessee Shri L.K. Goyal filed a voluntary return declaring total income of Rs. 13,510/- in the status of Hindu Undivided Family (HUF). The assessee died on February 25,1976 leaving behind four sons, namely S.S. Goyal, V.P. Goyal, H.C. Goyal and M.C. Goyal. The property owned by the family represented deposits with M/s Jaipur Auction House, M/s Modern Furnitures and M/s Goyal and Sons and the return for the assessment year 1977-78 has been filed by the assessee in respect of the income earned on the above deposits. The Income Tax Officer under his assessment order dated February 7, 1980, made the assessment on protective basis in the status of HUF as the return was filed in the status of HUF. The ITO said that the deceased has always been assessed in his individual capacity and at no point of time question of HUF status was raised. He also reached to the conclusion that as the deposits were not divided among the legal heirs and the correct status would be that of AOP. The assessee filed an appeal against the aforesaid order before the Appellate Asstt. Commissioner of Income tax, who following the decision in the case of M.N. Jain vs. ITO (1), decided on November 26, 1980, held that on the death of Shri L.K. Goyal, the estate devolved upon his four sons by way of inheritance in the capacity of HUF and therefore the ITO was not right in holding that the correct status of dependents was that of AOP. It was held that the correct status of the assessee should be taken as that of HUF. The CIT Jaipur filed second appeal to the Income-tax Appellate Tribunal Bench Jaipur and the Tribunal upheld the order of the Appellate Asstt. It was held that the correct status of the assessee should be taken as that of HUF. The CIT Jaipur filed second appeal to the Income-tax Appellate Tribunal Bench Jaipur and the Tribunal upheld the order of the Appellate Asstt. Commissioner of Income tax and dismissed the appeal. An application was filed under Sec. 256 (1) of the Act before the Tribunal to refer the. aforesaid question for opinion of this court. It will be seen that the case of MN Jain (supra) which was relied upon by the learned Appellate Asstt. Commissioner of Income-Tax in taking the view that on the death of L.K. Goyal his estate devolved upon his four sons by way of inheritance, was decided on the basis of CIT vs. Babu Bhai Mansukh Bhai (2). (3) The contention of the learned counsel for the revenue is that L.K. Goyal has throughout been assessed as individual and on his death so far as the income for which return has been filed, would have gone by inheritance to his four sons and they did not constitute HUF and the status could not be held as HUF. According to the learned counsel, the ITO has rightly assessed him on protective basis but in fact the status of dependents is that of AOP. Learned counsel contends that there are two authorities in which the aforesaid view is taken and in this connection, reference was made to Addl. CIT vs. P.L. karuppan Chettiar (3) and Commissioner of Income Tax vs. Ram Rakshpal, (4). Learned counsel for the assessee on the other hand contended that even if two views are plausible and possible, the view more favourable to the assessee should be followed. (4) An attempt has been made by the learned counsel for the assessee during the course of arguments as well as by written objections to this reference by the Tribunal to show to this court that in fact so far as three deposits in the above three firms are concerned, their nature was of HUF and though L.K. Goyal was assessed as individual but he had also the HUF property and the deposits in the said three firms were sale proceeds of immovable properties, but we are required to answer the question referred to us and will not go into the correctness or otherwise of the facts as submitted by the learned counsel for the parties before us. We will assume for the disposal of this reference that L.K. Goyal was assessed as individual and the question is as to whether on his death his individual estate which was the subject of assessment before the assessing authority had and could have the status of HUF on substantive basis as held by the Appellate Asstt. Commissioner or on protective basis as held by the assessing authority? In the case of Commissioner of Income Tax vs. Ram Rakshpal (supra) the Honble Judges of the Allahabad High Court referred to the case of Muhammad Hussain Khan vs. Babu Kishna Nandan Sahai (5), wherein Sir Shadilal an eminent Judge, observed : — "The rule of Hindu Law is well settled that the property which a man inherits from any of his three immediate paternal ancestors, namely, his father, fathers father, and fathers fathers father is ancestral property as regards his male is son, and his son acquires jointly with him an interest in it by birth. Such property is held by him in coparcenary with his male issue, and the doctrine of survivorship applies to it." The learned Judges said that in view of the provisions of the Hindu Succession Act, individual assets left by a Hindu would be governed by Section 8 of the Succession Act and to that extent by virtue of Section 4(1) (a) of the Hindu Succession Act the pre-existing rule of Hindu Law will stand replaced. The Full Bench of the Madras High Court in the case of Addl. CIT vs. P.L. Karuppan Chettiar, (supra), was considering a case of partition effected in the Hindu Undivided Family consisting of P, his wife, their sons K and their daughter-in-law. P was allotted certain properties for his share and got separated. K alongwith his wife and their subsequently born children constituted a Hindu Undivided Family which was being assessed in that status. P died on September 9, 1963, leaving behind his widow and divided son K who was the karta of his Hindu Undivided Family as his legal heir. Madras High Court held that under Section 8 of the Hindu Succession Act, 1956, these two persons succeeded to the properties left by the deceased P and divided the properties among themselves. P died on September 9, 1963, leaving behind his widow and divided son K who was the karta of his Hindu Undivided Family as his legal heir. Madras High Court held that under Section 8 of the Hindu Succession Act, 1956, these two persons succeeded to the properties left by the deceased P and divided the properties among themselves. As said earlier, K was the Karta of undivided family of himself, wife and subsequently born children and for certain years the Income tax Officer included for assessment the income received from the properties inherited by K from his father P. The said inclusion was confirmed by the Appellate Asstt. Commissioner but on further appeal, the Tribunal held that the properties did not form part of the joint family properties and hence the income therefore could not be assessed in the hands of the family. On a reference to the Madras High Court, a Full Bench of that Court held that : — the property of a male Hindu devolved on his death on his sons and grandsons and the grandsons also have an interest in the property. However, by reason of section 8 of the Hindu Succession Act, 1956, the sons son gets excluded and the son alone inherits the property to the exclusion of his son. No interest would accrue to the grandson of P in the property left by him on his death. The Full Bench further held :- "As the effect of Section 8 is directly derogatory of the law established according to Hindu Law, the statutory provision must prevail in view of the unequivocal intention in the statute itself, expressed in Section 4 (1), which says that to the extent to which provisions have been made in the Act those provisions shall override the established provisions in the texts of Hindu Law." It will be seen that the aforesaid view is in consonance with the view of Allahabad High Court in the case of CIT vs. Ram Rakshpal (supra). Similarly, Madhya Pradesh High Court also examined this aspect of the case in the case of Shrivallabhdas Modani vs. Commissioner of Income tax (6) and held that if there was no coparcenary subsisting between a Hindu and his son at the time of death of his father, property received by him on his fathers death could not be so blended with the property which had been allotted to his sons on a partition effected prior to the death of the father. The Court also referred to the provisions of Section 8 of Hindu Succession Act and felt that section 8 of Hindu Succession Act should be taken as a self contained provision laying down the scheme of devolution of the property of a Hindu dying intestate. Therefore, the property devolved on a Hindu on the death of his father intestate after coming into force of the Hindu Succession Act did not constitute HUF property consisting of his own branch including his sons. In fact the Madhya Pradesh High Court followed the Full Bench decision of Madras High Court in the case of Addl. CIT vs. P.L. Karuppan Chettiar (supra). The Andhra Pradesh High Court had also the occasion to deal with a similar question, though in the context of Wealth Tax in the case of Commissioner of Wealth Tax AP-II vs. Mukandgiri, (7) and in view of Section 8 of the Hindu Succession Act said that the property which a son inherited from his father in case father and his son do not constitute a Joint Hindu Family in the coparcenary is his individual property. (5) There is only one case where a contrary view has been taken and it is CIT vs. Dr. Babubhai Mansukh Bhai (supra). Placing reliance on the old Hindu law, the Gujarat High Court held that in the case of Hindus governed by the Mitakshara law where a son inherits the self acquired property of his father, the son takes it as the joint family property of himself and his son and not as his separate property. The correct status for the assessment to income tax of the son in respect of such property is as representing his Hindu undivided family. It did not agree with the view of Allahabad High Court expressed in the case of CIT vs. Ram Rakshpal (supra). The correct status for the assessment to income tax of the son in respect of such property is as representing his Hindu undivided family. It did not agree with the view of Allahabad High Court expressed in the case of CIT vs. Ram Rakshpal (supra). It will be seen in this case that the Appellate Assistant Commissioner of Income tax decided the appeal under its order dated March 19, 1981 (Annx. B) on the basis of Gujarat High Court ruling in the case of CIT vs. Dr. Babubhai Mansukh Bhai (supra). It will be further seen from the order of the Tribunal dated March 24, 1982 that the Tribunal dismissed the appeal relying on its earlier decision in the case of MN Jain (supra) and the aforesaid case of Gujarat High Court. The above case of Gujarat High Court and other cases of Allahabad High Court, Andhra Pradesh, Madhya Pradesh and Madras High Courts were considered by the Apex Court in the case of Wealth Tax Commissioner vs. Chander Sen (8), and the Supreme Court held that the view taken in the aforesaid case of Gujarat High Court CIT vs. Dr. Babubhai Mansukh Bhai (supra) is not the correct view and the Apex Court upheld the view taken by other High Courts referred to above. The Apex Court in para 20 of the aforesaid judgment said : — "In view of the Preamble to the Act i.e. that to modify where necessary and to codify the law, in our opinion it is not possible when Schedule indicates heirs in Class I and only includes son and does not include sons son, but does include son of a predeceased son, to say that when son in-herits the property in the situation contemplated by S.8 he takes it as karta of his own undivided family. The Gujarat High Courts view noted above, if accepted, would mean that though the son of a predeceased son and not the son of a son who is intended to be excluded under S.8 to inherit, the latter would by applying the old Hindu Law get a right by birth of the said property contrary to the scheme outlined in S.8. Furthermore as noted by the Andhra Pradesh High Court the Act makes it clear by S.4 that one should look to the Act in case of doubt and not to the pre-existing Hindu Law. Furthermore as noted by the Andhra Pradesh High Court the Act makes it clear by S.4 that one should look to the Act in case of doubt and not to the pre-existing Hindu Law. It would be difficult to hold today the property which devolved on a Hindu under S.8 of the Hindu Succession Act would be HUF property in his hand visa-vis his own son; that would amount to creating two classes among the heirs mentioned in Class I, the male heirs in whose hands it will be joint Hindu family property and vis-a-vis son and female heirs with respect to whom no such concept could be applied or contemplated. It may be mentioned that heirs in Class I of Schedule under S.8 of the Act included widow, mother, daughter of predeceased son etc." (6) It can, therefore, be said that the view taken by the Tribunal is not correct. We, therefore, answer the question referred to us as under : — "On the facts and in the circumstances of the case the Tribunal was not justified in holding that the separate property of the deceased Shri L.K. Goyal would constitute HUF property in the hands of his sons and grand-sons." (7) We hereby direct that a copy of this judgement be sent under the seal of the court and under the signature of the Registrar to the Tribunal, who shall pass necessary orders in conformity with this judgment. Costs made easy.