JUDGMENT Iqbal Ahmed Ansari, J. 1. Because of the fact that the questions of law, which are involved in the present set of appeals, are identical, the parties to these appeals are also the same and decision in any of these appeals would have a bearing on the outcome of the other appeals, all these appeals have been heard together and are being disposed of by this common judgment and order. The appeals have been admitted on the following questions of law:- (1) Whether, on the facts and in the circumstances of the case, the Tribunal, ignoring the relevant materials before it, was justified and did not err in holding that there was no existence of valid Hindu undivided family and thus pass a perverse order? (2) Whether, on the facts and in the circumstances of the case, the Tribunal erred in law in holding that the returned income is to be assessed in the hands of Krishna Kanta Barkataky and Ajit Barkataky in the absence of a finding that the funds invested in FDRs emanated from the individual income of K.K. Barkataky and/or Ajit Barkataky or that the income of the Hindu undivided family was enjoyed by K.K. Barkataky and Ajit Barkataky? (3) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in the appeal filed by the Revenue in reversing the decision of the Assessing Officer adopting/determining the status of AOP and the canceling the protective assessment completely when the Commissioner of Income Tax has no right of appeal against the order of the Assessing Officer? (4) Whether, on the facts and in the circumstances of the case, the order dated June 10, 2003, purportedly pronouncing the majority opinion of the three separate orders has not failed to do so and is it in accordance with Section 255(4) of the Act? 3. The material facts, which are not in dispute and which have given rise to the present appeals, may, in brief, be set out as follows: (i) The appellant claims to be a Hindu undivided family consisting of two co-parceners, namely, Biswa Kanta Barkataky and Krishna Kanta Barkataky, both being sons of the late Gauri Kanta Barkataky. The Hindu undivided family came into existence after the death of their father, Gauri Kanta Barkataky, in the year 1947. The Hindu undivided family came into existence after the death of their father, Gauri Kanta Barkataky, in the year 1947. Krishna Kanta Barkataky expired on August 18, 1993, and Biswa Kanta Barkataky expired on July 13, 1996. The said Hindu undivided family was first assessed, on September 7, 1982, under Section 143(3) of the Income Tax Act, 1961 (in short the Act), for the assessment year 1979-80. Returns of income for the assessment years 1980-81 and 1981-82 were filed but no assessments were communicated. (ii) Returns of income were filed for the assessment years 1983-84, 1984-85 and 1985-86 in the status of a Hindu undivided family, the returned income being (-) Rs. 9,370, Rs. 7,310 and Rs. 6,430 respectively. The assessments for the assessment years 1983-84 and 1984-85 were completed under Section 143(3)/144A of the Act in the status of AOP as a protective measure. The assessment for the assessment year 1985-86 was made in the status of a Hindu undivided family on protective basis. All the assessments made in respect of the assessments years 1983-84, 1984-85 and 1985-86 were set aside by the Commissioner of Income Tax (Appeals) by his consolidated order, dated November 18, 1988. On further appeal by the appellant, the learned Income Tax Appellate Tribunal, vide its consolidated order, dated June 22, 1990, restored the matter back to the Commissioner of Income Tax (Appeals). In turn, the Commissioner of Income Tax (Appeals) also, vide his order, dated June 18, 1992, set aside the assessments and directed the Assessing Officer to dispose of the cases in accordance with law. (iii) Fresh assessments for the assessment years 1983-84, 1984-85 and 1985-86 were made by the Assessing Officer on March 17, 1994, under Section 143(3)/251/144A of the Act, as a protective measure, in the status of AOP. The Assessing Officer further held that the FDRs. as shown in the balance-sheet, and the interest income would be assessed in the hands of the persons in whose name the FDRs. were found, namely, Krishna Kanta Barkataky and Ajit Barkataky (sons of the deceased Krishna Kanta Barka-taky) on a substantive basis. (iv) On appeal by the appellant, the Commissioner of Income Tax (Appeals), vide his consolidated order, dated September 25, 1995, for the assessment years 1983-84, 1984-85, 1985-86, accepted the contention of the appellant that there was a valid Hindu undivided family in existence assessable to tax. (iv) On appeal by the appellant, the Commissioner of Income Tax (Appeals), vide his consolidated order, dated September 25, 1995, for the assessment years 1983-84, 1984-85, 1985-86, accepted the contention of the appellant that there was a valid Hindu undivided family in existence assessable to tax. The Commissioner of Income Tax (Appeals) accordingly determined the status of the appellant as that of the Hindu undivided family and cancelled the protective nature of the assessments. The Commissioner of Income Tax (Appeals) further directed that the FDRs. mentioned in the balance-sheet of the said Hindu undivided family, and the income derived therefrom shall be assessed in the hands of the said Hindu undivided family on a substantive basis and not in the hands of Krishna Kanta Barkataky and Ajit Barkataky. (v) For the assessment year 1988-89, the return of income was filed, in the status of Hindu undivided family, showing income of Rs. 12,290. On the basis of assessments made in the earlier years, the assessment was completed, on March 6, 1992, under Section 143(3) of the Act, in the status of Hindu undivided family, as a protective measure. On appeal by the appellant, the Commissioner of Income Tax (Appeals), vide his order dated October 29, 1992, held that the appellant was assessable as an Hindu undivided family The Commissioner of Income Tax (Appeals), therefore, cancelled the protective assessment. (vi) The Revenue preferred appeals against the aforesaid appellate orders, dated September 25, 1995, and October 29, 1992, before the Income Tax Appellate Tribunal. The said appeals were registered as I. T. A. Nos. 11, 12 and 13/Gau/96 for the assessment years 1983-84, 1984-85, 1985-86 and I. T. A. No. 188(Gau)/93 for the assessment year 1988-89. All the aforesaid four appeals were disposed of by a consolidated order of the learned Tribunal. The learned Tribunal held that the claim of the status of the appellant as that of the Hindu undivided family was not conclusively proved and, therefore, the Assessing Officer was justified in not accepting the existence of the Hindu undivided family However, there was a difference of opinion between both the learned members of the Tribunal on the issue as to whether the Assessing Officer was justified in treating the status of the appellant as an AOP. The matter, then, was referred to a third member, who concurred with the views expressed by the learned Judicial Member, and it was held, by the majority view, that the protective assessments, made in the hands of AOP shall be cancelled and the returned income shall be assessed in the hands of K. K. Barkataky and Ajit Barka-taky on substantive basis in their individual assessments. It is against the said appellate orders passed by the learned Tribunal that these appeals have been preferred by the assessee. 4. We have heard Mr. R.P. Agarwalla, learned senior counsel appearing on behalf of the assessee-appellant, and Mr. U. Bhuyan, learned Counsel appearing on behalf of the respondents. 5. Appearing on behalf of the appellant, Mr. R.P. Agarwalla, learned senior counsel, has submitted that the learned Tribunal's finding that the appellant could not prove formation and existence of Hindu undivided family is completely perverse inasmuch as even the findings, which the learned Tribunal has itself recorded, go to show, on a close scrutiny, that the essential facts, leading to the formation of Hindu undivided family, had been noted by the learned Tribunal, but the eventual finding, rendered by it, is to the effect that the appellant could not prove that there was formation of Hindu undivided family. The finding, so reached, by the learned Tribunal is, reiterated by Mr. Agarwalla, completely perverse, and cannot withstand the test of law. The submission, so made, on behalf of the appellant, is resisted by Mr. U. Bhuyan, learned Counsel for the respondents, who contends that the learned Tribunal's finding, on facts as well as law, and particularly, on the question as to whether the appellant could prove that it ought to have been assessed, in the status of Hindu undivided family, is correct and, hence, needs no interference. 6. For the purpose of correctly appreciating the rival submissions, made before us on behalf of the parties, it needs to be pointed out that the appellant had submitted its returns of income claiming the status of Hindu undivided family. The appellant claimed that Gauri Kanta Barkataky had expired, in the year 1947, leaving behind four successors, namely, Paras, Biswakanta Manik and Krishna Kanta. The appellant also claimed that the late Gauri Kanta Barkataky had acquired agricultural lands during his lifetime, which, upon his death, devolved upon his successors and they became co-owners of these agricultural lands. The appellant claimed that Gauri Kanta Barkataky had expired, in the year 1947, leaving behind four successors, namely, Paras, Biswakanta Manik and Krishna Kanta. The appellant also claimed that the late Gauri Kanta Barkataky had acquired agricultural lands during his lifetime, which, upon his death, devolved upon his successors and they became co-owners of these agricultural lands. The appellant's further case was that Biswakanta Barkataky and Krishna Kanta Barkataky had exercised their volition, in the year 1947, to remain joint form Hindu undivided family with regard to the agricultural lands inherited by both of them from their father, Gauri Kanta Barkataky. It was the appellant's claim that the nucleus of the Hindu undivided family was the agricultural lands inherited from their father situated at village Jamaguri, Mouza Hatichung and Kachamari. It was also the appellant's claim that the said Hindu undivided family derived income from agriculture and interest and that the funds, for investments made in various FDRs, came either from the income of the Hindu undivided family or out of the borrowings made by the Hindu undivided family. The appellant's further claim was that its claim for status of Hindu undivided family and the investments, referred in the balance-sheet as on March 31, 1979, were accepted in the assessment year 1979-80 after making due enquiries and cannot be reopened. 7. We may also point out that the Assessing Officer had rejected the claim of the appellant mainly on the following grounds: (a) Nothing was put on record to establish that there was an agreement in 1947 between two of the four brothers to form a Hindu undivided family. (b) The land documents produced do not in any way show that these were lands of Gauri Kanta Barkataky nor do any of these documents relate to 1947 to show joint ownership at that time. It could just be the case that in later years these lands were purchased in joint names. (c) There is no evidence about the conduct of parties in terms of common residence or common kitchen or otherwise. (d) The heirs of a dayabhaga deceased person do not spontaneously by operation of law become members of Hindu undivided family. They remain co-owners with definite ascertained shares and are to be assessed individually unless there is evidence that the heirs voluntarily decided to constitute a Hindu undivided family amongst themselves. 8. (d) The heirs of a dayabhaga deceased person do not spontaneously by operation of law become members of Hindu undivided family. They remain co-owners with definite ascertained shares and are to be assessed individually unless there is evidence that the heirs voluntarily decided to constitute a Hindu undivided family amongst themselves. 8. The appellant had filed appeals against the assessment orders for the assessment years 1983-84, 1984-85 and 1985-86 before the Commissioner of Income Tax (Appeals) and for the assessment year 1988-89 before the Deputy Commissioner of Income Tax (Appeals). The appeal for the assessment years 1983-84, 1984-85 and 1985-86 were disposed of by the Commissioner of Income Tax (Appeals) by his order dated September 25, 1995. The appeal for the assessment year 1988-89 was disposed of earlier by the Deputy Commissioner of Income Tax (Appeals) by his order dated October 29, 1992. 9. Relying upon the decisions in Autoways (India) vs. CIT, (1976) 102 ITR 761 (Orissa) and Thakur Hari Singh vs. CIT, the Deputy Commissioner of Income Tax. (Appeals), in his order dated October 29, 1992, passed for the assessment year 1988-89, accepted the contention of the appellant to the effect that the declaration furnished in the Income Tax return, the explanation, dated September 6, 1982, filed in the course of the assessment proceedings for the assessment year 1979-80, and the two affidavits dated October 31, 1989, and February 15, 1992, sworn by Biswa Kanta Barkataky and Krishna Kanta Barkataky respectively, constitute unequivocal declaration of the intention sufficient to establish blending and formation of the Hindu undivided family. 10. The Deputy Commissioner of Income Tax (Appeals) also accepted the contention of the appellant that having been assessed as a Hindu undivided family in the assessment year 1979-80, the appellant became an assessee hitherto assessed as a Hindu undivided family within the meaning of Section 171(1) of the Act and it shall continue to be assessed as a Hindu undivided family unless a finding of partition is given under Section 171 of the Act and since there was no finding of partition and there was no order under Section 171(3) of the Act, the appellant shall be deemed to have continued as a Hindu undivided family for the purposes of the Act. The Deputy Commissioner of Income Tax (Appeals) also accepted the appellant's plea that no evidence had been brought on record by the Assessing Officer to prove that K.K. Barkataky and his family were the beneficiary of the entire funds of the Hindu undivided family. The Deputy Commissioner of Income Tax (Appeals), having assigned the reasons aforementioned, held that the appellant was assessable as a Hindu undivided family. 11. The Commissioner of Income Tax (Appeals) in his order dated September 25, 1995, passed for the assessment years 1983-84, 1984-85 and 1985-86, held that the appellant's family was joint in estate and hence, there could be a valid Hindu undivided family. After examining the land documents, the Commissioner of Income Tax (Appeals) held that these agricultural lands were acquired by the late Gauri Kanta Barkataky during his lifetime and, therefore, the jointness of possession of agricultural lands since 1947 also stood proved. Thus, on agreeing with the findings and conclusions arrived by the Deputy Commissioner of Income Tax (Appeals) in the assessment year 1988-89, the Commissioner of Income Tax (Appeals) held that there was a valid Hindu undivided family in existence assessable to tax. The Commissioner of Income Tax (Appeals), therefore, determined the status of the appellant as a Hindu undivided family and cancelled the protective assessments. 12. In the appeals preferred by the Revenue before the learned Tribunal, the learned Tribunal, however, held that the claim of the status of the appellant as that of the Hindu undivided family was not conclusively proved. The learned Tribunal also held that the protective assessments, made in the hands of AOP, were to be cancelled and the returned income was to be assessed in the hands of Krishna Kanta Barkataky and Ajit Barkataky on substantive basis in their assessments. 13. It is, at this stage, worth pointing out that the learned Accountant Member of the Tribunal, in his order, at paragraphs 5 and 6 (at pages 41 and 42 of the appeal petition), held as follows (pages 41 and 42 of 267 ITR (AT)): We have considered the rival submissions at length and perused the orders of the lower authorities in the light of the materials available on record. We have duly considered the various papers placed before us in the paper book. We have duly considered the various papers placed before us in the paper book. We have also considered the various case law relied upon by the learned authorised representative of the asses-see but we are of the considered opinion that the said case law do not conclusively establish the contention of the respondent. It is observed that the point of time at which Shri B. K. Barkataky and Shri K. K. Barkataky exercised their claimed volition to form Hindu undivided family is neither spelt out nor established. The state of facts during the period 1947 to 1970 are not on records. However, a scrutiny of the financial statements of the assessee shows that the source of income of the assessee is from agricultural income and interest income on FDRs. Agricultural income is derived from agricultural lands which are owned in joint names of Shri K. K. Barkataky and Shri B.K. Barkataky. The source of investment in FDRs with the banks are from the abovestated agricultural income as well as from loans borrowed in the name of the assessee. The Assessing Officer has not found in the order of assessment that the funds invested in FDRs emanated from the individual income of Shri Krishna Kanta Barkataky and/or Shri Ajit Barkataky or that the income of the assessee was enjoyed by Shri Krishna Kanta Barkataky and Shri Ajit Barkataky.... 6. Keeping in view the totality of the facts and circumstances of the case as stated above, we are of the considered view that the claim of the status by the assessee as of Hindu undivided family is not conclusively proved. 14. Learned Judicial Member of the Tribunal also agreed with the above findings of the learned Accountant Member. In paragraph 11 of his separate order (at page 46 of the appeal petition), the learned Judicial Member held as follows (page 44 of 267 ITR (AT)): 11. The learned Accountant Member, vide paragraphs 5 to 7 of his order after considering the material on record, orders of the authorities below and the rival submissions of the parties has held, that claim of the status of the assessee as of a Hindu undivided family is not conclusively proved. In this regard, I agree with my learned brother. 15. The learned Accountant Member, vide paragraphs 5 to 7 of his order after considering the material on record, orders of the authorities below and the rival submissions of the parties has held, that claim of the status of the assessee as of a Hindu undivided family is not conclusively proved. In this regard, I agree with my learned brother. 15. We need to point out, now, that there are concurrent findings of material facts by the first appellate authority as well as the learned Tribunal, for the first appellate authority as well as the learned Tribunal have come to the conclusion that the agricultural lands, acquired by the late Gauri Kanta Barkataky, during his lifetime, were, after his death, jointly owned by K.K. Barkataky and B.K. Barkataky, sources of income of the appellant have had been from agricultural income as well as interest, the source of funds, invested in the FDRs. were from the agricultural income as well as borrowings made by the appellant and that there was no finding by the Assessing Officer to the effect that the funds, invested in the FDRs. had emanated from the individual incomes of Krishna Kanta Barkataky and Ajit Barkataky or that the income of the appellant Hindu undivided family was enjoyed by Krishna Kanta Barkataky and Ajit Barkataky. 16. In the face of the above findings of facts, which the learned Tribunal itself had arrived at, it becomes clear that there is considerable force, in the submissions made on behalf of the appellant, that having reached the conclusion that the agricultural lands, in question, were acquired by the late Gauri Kanta Barkataky, during his life time, and that the same were jointly owned by his two sons, namely, Krishna Kanta Barkataky and Biswa Kanta Barkataky, that sources of income of the appellant have had been from agricultural income as well as interest, the source of funds, invested in the FDRs, were from agricultural income as well as borrowings made by the appellant and that there was no material that the funds, invested in the FDRs, came from the individual incomes of Krishna Kanta Barkataky and Ajit Barkataky, the learned Tribunal's finding that the appellant's claim of being assessed in the status of a Hindu undivided family, is not conclusively proved, cannot but be regarded as perverse. 17. 17. To put it a little differently, the conclusion reached by the learned Tribunal that the appellant could not prove that it should be assessed in the status of a Hindu undivided family is completely perverse, when the learned Tribunal has itself recorded that the agricultural lands, in question, belonged to the deceased father of Krishna Kanta Barkataky and Biswa Kanta Barkataky and that it was from the income derived from the agricultural lands that the investments in the FDRs were made. When a Tribunal reaches a conclusion, which is not supported by reasons or which is contrary to reasons assigned, such a finding of fact cannot, but be treated as perverse. The reference, therefore, made by Mr. Agarwalla to the cases of CIT vs. S.P. Jain reported in (1973) 87 ITR 370 (SC) and Omar Salay Mohamed Suit vs. CIT, (1959) 37 ITR 151 (SC), cannot be said to be misplaced. In S.P. Jain reported in (1973) 87 ITR 370 (SC) the apex court held thus (page 381): In our view, the High Court and this Court have always the jurisdiction to intervene if it appears that either the Tribunal has misunderstood the statutory language, because the proper construction of the statutory language is a matter of law, or it has arrived at a finding based on no evidence or where the finding is inconsistent with the evidence or contradictory of it, or it has acted on material partly relevant and partly irrelevant or where the Tribunal draws upon its own imagination, imports facts and circumstances not apparent from the record, or bases its conclusions on mere conjectures or surmises, or where no person, judicially acting and properly instructed as to the relevant law could have come to the determination reached. In all such cases the findings arrived at are vitiated. 18. From the decision in S.P. Jain (1973) 87 ITR 370 (SC), what becomes clear is that when a Tribunal's finding is based on no evidence or where the finding is inconsistent with the evidence or when the finding is contradictory, the High Court would be within the bounds of law if it interferes with such a finding of fact, for, such findings are judicially not sustainable. 19. 19. Similarly, in Omar Salay Mohamed Sait, (1959) 37 ITR 151 (SC), the apex court held as follows (page 170): We are aware that the Income Tax Appellate Tribunal is a fact finding Tribunal and if it arrives at its own conclusion of fact after due consideration of the evidence before it this Court will not interfere. It is necessary, however, that every fact for and against the assessee must have been considered with due care and the Tribunal must have given its finding in a manner which would clearly indicate what were the questions which arose for determination, what was the evidence pro and contra in regard to each one of them and what were the findings reached on the evidence on record before it. The conclusions reached by the Tribunal should not be coloured by any irrelevant considerations or matters of prejudice and if there are circumstances which required to be explained by the assessee, the assessee should be given an opportunity of doing so. On no account whatever should the Tribunal base its findings on suspicions, conjectures or surmises nor should it Act on no evidence at all or on improper rejection of material and relevant evidence or partly on evidence and partly on suspicions, conjectures or surmises and if it does anything of the sort, its findings, even though on questions of fact, will be liable to be set aside by this Court. 20. From the decision rendered in Omar Salay Mohamed Salt, (1959) 37 ITR 151 (SC), what becomes evident is that when a Tribunal's findings are based on suspicion, conjectures or surmises or are based on no evidence at all or improper rejection of material and relevant evidence or partly on evidence and partly on suspicion, conjectures or surmises, such findings, even though findings of fact, will be liable to be set aside by the High Court. 21. In Pyarelal Mittal vs. Assistant CIT reported in, this Court has held thus (page 222): In Santosh Hazari vs. Purushottam Tiwari, (2001) 251 ITR 84 (SC), the hon'ble Supreme Court observed that if the appraisal of evidence by the trial court suffers from material irregularities and is based on inadmissible evidence or on conjectures and surmises, the appellate court is entitled to interfere with the findings of fact. The Supreme Court held that the first appeal is a valuable right of the parties and unless restricted by law, the whole case therein is open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and the findings supported by reasons on all the issues. It has further been observed that as a matter of law if the appraisal of the evidence by the trial court suffers from a material irregularity and is based on inadmissible evidence, or on conjectures and surmises, the appellate court is entitled to interfere with the findings of fact. This judgment was rendered in the context of interpretation of Section 100 of the Code of Civil Procedure. In CIT vs. A. Raman and Co. (1968) 67 ITR 11 (SC) relied upon by the Commissioner of Income Tax (Appeals), it has been made clear by the hon'ble Supreme Court that the law does not oblige a trader to make the maximum profit that he can out of his transactions. It is the income in the hands of the trader which is taxable. Any income he could have, but not earned, is not exigible to tax as income. In Highways Construction Co. P. Ltd. vs. CIT, a Division Bench of this Court found fault with levy of notional interest on a loan given by the asses-see without interest. The Division Bench held that the addition of notional interest is not justified since the assessee did not bargain for interest nor had calculated interest. In such a situation, the Division Bench held that the addition of notional interest as due could not form part of the income. The ratio available from the above judgment would show that in a case where the findings of fact, by the Tribunal are perverse and contrary to materials on record and based on surmises and conjectures, the High Court under Section 260A would be competent to interfere. 22. This Court's decision in Pyare Lal Mittal leave no room for doubt that though the High Court would not ordinarily interfere with a Tribunal's finding of fact, it would be justified if the High Court interferes with such a finding of fact, which is contrary to materials on record and/or based on surmises and conjectures, for, such a finding, would be nothing but perverse. 23. 23. In the face of the authorities discussed above, there can be no two opinions that where the finding of facts, reached by a Tribunal, is perverse and/or wholly contrary to the materials on record, the High Court, in exercise of its power under Section 260A of the Act, would be competent to interfere with such a finding. 24. As regards the learned Tribunal's observation that the volition exercised by K. K. Barkataky and B. K. Barkataky is not established, it may be pointed out that the learned Tribunal has overlooked the affidavits filed by K.K. Barkataky and B. K. Barkataky before the Assessing Officer. The averments, made in these affidavits, have not been discredited at any stage of the proceedings. Hence, the averments, made in those affidavits, ought to have been accepted by the authorities below as correct. (See Mehta Parikh and Co. vs. CIT, (1956) 30 ITR 181(SC) and Hanutram Ram Prasad vs. CIT. The learned Tribunal has also over looked the certificate, dated December 24, 1984, issued by the Purbanchal Bank Ltd., certifying that the FDRs. were purchased by M/s. Gauri Kanta Barkataky and other (HUF) which was placed at page 10 of the paper book filed before the Tribunal. The consistent conduct of the coparceners, as was evidenced by the returns of income filed year after year, also appears to have escaped the attention of the learned Tribunal. It may be noted that the declaration, furnished in the Income Tax return, constitutes unequivocal declaration of intention and it would be sufficient to establish blending or formation of Hindu undivided family unless there is either no material to show formation of Hindu undivided family or when there is materials belying formation of Hindu undivided family. Reference may be made to the case of Autoways (India) vs. CIT, (1976) 102 ITR 761 (Orissa), wherein the Orissa High Court has held thus (page 766): No dispute has been raised before us that the assessee would be governed by the Mitakshara school of Hindu law. In Mulla's Hindu Law, at page 45, 14th edition, it has been stated that the Hindus living in Punjab are governed by the said school except to the extent customs exclude application of the Mitakshara law. In Mulla's Hindu Law, at page 45, 14th edition, it has been stated that the Hindus living in Punjab are governed by the said school except to the extent customs exclude application of the Mitakshara law. On the admitted position that the assets belonged to Sardar Santokh Singh, he was entitled to put the same into the common stock and for doing so, no other process than expression of a clear and unequivocal intention was sufficient. Mr. Pasayat for the assessee has argued relying upon two decisions that the declaration furnished in the return for these six years constituted, unequivocal expression of intention and that would be sufficient to establish blending. In the case of Thakur Hari Singh vs. CIT, a Bench of the Rajasthan High Court has taken that view. Similarly, in the case of G. Mohan Rao vs. G. Satyanarayana, (1972) 84 ITR 685 (AP), a Bench of the Andhra Pradesh High Court has accepted the same position in law. By unilateral declaration Sardar Santokh Singh was thus capable of putting his own separate property into a common stock. 25. It is also noteworthy that the learned Tribunal has observed that the state of facts the period from 1947 to 1970 is not on records. In this regard, it is submitted, on behalf of the appellant, that as the appellant's income was not taxable under the Act, no returns were filed during this period. In view of the fact that there is nothing on the record to indicate that the appellant had derived such an income between 1947 and 1970, which were taxable, the fact that no assessment had been made in the status of Hindu undivided family, when Krishna Kanta Barkataky and Biswa Kanta Barkataky were alive, is of no material consequence. 26. Above all, what is extremely important to note is that the appellant was assessed, in the status of a Hindu undivided family, in the assessment year 1979-80. This assessment attained finality inasmuch as no appeal was ever preferred against the assessment, so made, nor was the assessment interfered with in exercise of revisional jurisdiction in terms of the provisions contained in the Act. In this backdrop of the facts, when we turn to Section 171 of the Act, we find that Section 171 reads as under: 171. This assessment attained finality inasmuch as no appeal was ever preferred against the assessment, so made, nor was the assessment interfered with in exercise of revisional jurisdiction in terms of the provisions contained in the Act. In this backdrop of the facts, when we turn to Section 171 of the Act, we find that Section 171 reads as under: 171. Assessment after partition of a Hindu undivided family – (1) A Hindu family hitherto assessed as undivided shall be deemed for the purposes of this Act to continue to be a Hindu undivided family, except where and in so far as a finding of partition has been given under this section in respect of the Hindu undivided family. (2) Where at the time of making an assessment under Section 143 or Section144, it is claimed by or on behalf of and member of a Hindu family assessed as undivided that a partition, whether total or partial, has taken place among the members of such family, the Assessing Officer shall make an inquiry thereinto after giving notice of the inquiry to all the members of the family. (3) On the completion of the inquiry, the Assessing Officer shall record a finding as to whether there has been, a total or partial partition of the joint family property, and, if there has been such a partition, the date on, which it has taken place. (4) Where a finding of total or partial partition has been recorded by the Assessing Officer under this section, and the partition took place during the previous year: (a) The total income of the joint family in respect of the period up to the date of partition shall be assessed as if no partition had taken place. (b) Each member or group of members shall, in addition, to any tax for which he or it may be separately liable and notwithstanding anything contained in Clause (2) of Section10, be jointly and severally liable for the tax on the income so assessed. (b) Each member or group of members shall, in addition, to any tax for which he or it may be separately liable and notwithstanding anything contained in Clause (2) of Section10, be jointly and severally liable for the tax on the income so assessed. (5) Where a finding of total or partial partition has been recorded by the Assessing Officer under this section, and the partition took place after the expiry of the previous year, the total income of the previous year of the joint family shall be assessed as if no partition had taken place and the provisions of Clause (b) of Sub-section (4) shall, so far as may be, apply to the case. (6) Notwithstanding anything contained in this section, if the Assessing Officer finds after completion of the assessment of, a Hindu undivided family that the family has already effected a partition, whether total or partial, the Assessing Officer shall proceed to recover the tax from every person who was a member of the family before the partition, and every such person shall be jointly and severally liable for the tax on the income so assessed. (7) For the purposes of this section, the several liability of any member or group of members thereunder shall be computed according to the portion of the joint family property allotted to him or it at the partition, whether total or partial. (8) The provisions of this section shall, so far as may be, apply in relation to the levy and collection of any penalty, interest, fine or other sum in respect of any period up to date of the partition, whether total or partial, of a Hindu undivided family as they apply in relation to the levy and collection of tax in respect of any such period. (9) Notwithstanding anything contained in the foregoing provisions of this section, where a partial partition has taken place after the 31st day of December, 1978, among the members of a Hindu undivided family hitherto assessed as undivided:- (a) No claim that such partial partition has taken place shall be inquired, into under Sub-section (2) and no finding shall be recorded under Sub-section (3) that such partial partition had taken place and any finding recorded under Sub-section (3) to that effect whether before or after the 18th day of June, 1980, being the date of introduction of the Finance (No. 2) Bill, 1980, shall be null and void. (b) Such family shall continue to be liable to be assessed under this Act as if no such partial partition had taken place. (c) Each member or group of members of such family immediately before such partial partition and the family shall be jointly and severally liable for any tax, penalty, interest, fine or other sum payable under this Act by the family in respect of any period, whether before or after such partial partition. (d) The several liability of any member or group of members aforesaid shall be computed according to the portion of the joint family property allotted to him or it at such partial partition and the provisions of this Act shall apply accordingly. Explanation – In this section (a) Partition means: (i) Where the property admits of a physical division, a physical division of the property, but a physical division of the income without a physical division of the property producing the income shall not be deemed to be a partition. (ii) Where the property does not admit of a physical division, then such division as the property admits of, but a mere severance of status shall not be deemed to be a partition. (b) Partial partition means a partition which is partial as regards the persons constituting the Hindu undivided family, or the properties belonging to the Hindu undivided family, or both. 27. (b) Partial partition means a partition which is partial as regards the persons constituting the Hindu undivided family, or the properties belonging to the Hindu undivided family, or both. 27. When Section 171 of the Act is read as a whole, what becomes abundantly clear is that when a person is assessed in the status of Hindu undivided family, it shall be deemed to have remained Hindu undivided family for the purpose of assessment of tax under the Act unless there is a finding of partition in terms of the provisions of Sub-section (3) of Section 171 of the Act in respect of partition of the properties of such Hindu undivided family. 28. In Kalloomal Tapeswari Prasad (HUF) vs. CIT, (1982) 133 ITR 690 (SC), the Supreme Court had the occasion to point out that Sub-section (1) of Section 171 of the Act essentially contains a deeming provision, for, a Hindu family, hitherto assessed as undivided, shall be deemed, for the purposes of the Act, to have continued as Hindu undivided family, except, where and in so far as a finding of partition has been recorded in the Hindu undivided family. In Kalloomal Tapeswari Prasad (HUF) (1982) 133 ITR 690 (SC), the Supreme Court has also pointed out that where there is no claim made that a partition, total or partial, had taken place, a Hindu family, which is hitherto assessed as Hindu undivided family, shall be continued to be assessed as a Hindu undivided family, even if a partition of the properties of the Hindu undivided family has, according to the Hindu law, taken place, for, a partition, in terms of the Hindu law, has no bearing on the assessment of income under the Act inasmuch as the Act deems that a Hindu family, "hitherto assessed as undivided" has continued to remain as Hindu undivided family except where partition in terms of the provisions of Section 171 of the Act has been recorded. In other words, even if, according to the Hindu law, the properties of a Hindu undivided family came to be partitioned, yet the Hindu undivided family would be treated, for the purposes of the Act, to have continued as a Hindu undivided family if it has been once assessed as Hindu undivided family unless a partition, total or partial, has been recorded in terms of Sub-section (3) of Section 171 of the Act. In short, thus, if once a Hindu family has been assessed as an undivided family, whenever, following such assessment, the question of assessment of such a person, again, arises or income of such a person is required to be assessed for the purposes of the Act, such a person shall have to be treated to have continued as a Hindu undivided family, if the factum of partition has not been recorded in terms of Sub-section (3) of Section 171 of the Act, even if the Hindu undivided family stands, in fact, partitioned in accordance with the Hindu law. Thus, the personal law of a party has no bearing on the provisions of the Act. The relevant observations made, in the case of Kalloomal Tapeswari Prasad (HUF) (1982) 133 ITR 690 (SC), read as under (page 704): Now, we come to Sub-section (1) of Section 171 of the Act which contains a 'deeming' provision. It says that a Hindu family hitherto assessed as undivided shall be deemed for the purposes of the Act to continue to be a HUF, except, where and in so far as a finding of partition has been recorded in respect of it under Section 171. Partition referred to here can obviously include a partial partition also either as regards the persons constituting the undivided family or the properties belonging to it or both, in view of the provisions contained in the other sub-sections in and in the Explanation to Section 171. Where there is no claim made that a partition-total or partial-had taken place or where it is made and disallowed an HUF which is hitherto being assessed as such will have to be assessed as such notwithstanding the fact that a partition had in fact taken place as per Hindu law... Mere proof of severance of status under the Hindu law is not sufficient to treat such a transaction as a partition. If a transaction does not satisfy the above additional conditions it cannot be treated as a partition under the Act even though under the Hindu law there has been a partition-total or partial. The consequence will be that the undivided family will be continued to be assessed as such by reason of Sub-section (1) of Section 171. 29. If a transaction does not satisfy the above additional conditions it cannot be treated as a partition under the Act even though under the Hindu law there has been a partition-total or partial. The consequence will be that the undivided family will be continued to be assessed as such by reason of Sub-section (1) of Section 171. 29. In ITO vs. Smt. N.K. Sarada Thampatty, (1991) 187 ITR 696(SC), when the question once again came up as regards the interpretation of Sub-section (1) of Section 171, the apex court, following the decision in Kalloomal Tapeswari Prasad (HUF) (1982) 133 ITR 690 (SC), observed thus (page 702 of 187 ITR): We do not consider it necessary to discuss those decisions, as the purpose and object of Section 171 and the extent of the legal fiction introduced by it has already been considered by this Court in Kalloomal's Case (1982) 133 ITR 690 (SC). 30. The law on the above aspect has been made more explicit by the apex court in its decision in R.B. Tunki Sah Baidyanath Prasad vs. CIT, (1995) 212 ITR 632 (SC), wherein, having referred to both its earlier decisions, namely, Kalloomal Tapeswari Prasad (HUF) (1982) 133 ITR 690 (SC) and Smt. T.K. Sarada Thampatty (1991) 187 ITR 696 (SC), the apex court firmly held that a Hindu undivided family would be liable to be taxed as Hindu undivided family if it had been until before the assessment sought to be made, assessed as an undivided family under the Act, even if there is partition of properties in terms of the Hindu Succession Act, unless a finding with regard to partition, total or partial, has been made in terms of Sub-section (3) of Section 171 of the Act. The observations made by the apex court, in R.B. Tunki Sah Baidyanath Prasad vs. CIT, (1995) 212 ITR 632 (SC) read as under (page 636): That being so, in view of the language of Section 171(1), the Hindu undivided family would be liable to be taxed as undivided notwithstanding the effect of Section 14(1) of the Hindu Succession Act. The observations made by the apex court, in R.B. Tunki Sah Baidyanath Prasad vs. CIT, (1995) 212 ITR 632 (SC) read as under (page 636): That being so, in view of the language of Section 171(1), the Hindu undivided family would be liable to be taxed as undivided notwithstanding the effect of Section 14(1) of the Hindu Succession Act. In our view, it is not necessary to go into the details because the matters stand covered by the decision of this Court in Kalloomal Tapeswari Prasad (HUF) vs. CIT, (1982) 133 ITR 690 (SC), which came to be followed in the subsequent decision recorded in Smt. T.K. Sarada Thampatty (1991) 187 ITR 696 (SC). In these two decisions, the court examined the language of Section 171(1) and ultimately came to the conclusion that, unless an inquiry is undertaken by the Department and a finding is recorded as required by Sub-section (3) of Section 171 read with the definition of the expressions partition and partial partition in the Explanation to that provision, there could for the purposes of the Income Tax Act be no partition and the Hindu undivided family would continue to be a Hindu undivided family assessable to tax as if the property continues to belong to the Hindu undivided family. This is the position which emerges on a plain reading of Section 171 and that too for the limited purposes of the Act only. 31. In the case at hand, the appellant was assessed, in the year 1979-80, as a Hindu undivided family. Since no enquiry has been undertaken by any of the functionaries of the Income Tax Department and no record exists and no partition has been recorded in terms of Sub-section (3) of Section 171 of the Act in the present case, there can be, in the light of the authorities discussed above, no escape from the conclusion that the appellant ought to have been assessed in the status of a Hindu undivided family. 32. We may also refer to Addl. 32. We may also refer to Addl. CIT vs. Maharani Raj Laxmi Devi reported in (1997) 224 ITR 582 (SC), wherein the apex court has expressed similar views, as R.B. Tunki Sah Baidyanath Prasad, (1995) 212 ITR 632 (SC), in the following words (page 588 of 224 ITR): In the instant case, admittedly, no inquiry was undertaken on the question whether there had been a total or partial partition of the joint family and, if yes, the date on which it had taken place. That being so, in view of the language of Section 171(1), the Hindu undivided family would be liable to be taxed as undivided notwithstanding the effect of Section 14(1) of the Hindu Succession Act. 33. What can also not be ignored is that when a property is acquired with the aid or assistance of joint family, the property, so acquired, becomes and remains the assets or properties of the Hindu undivided family unless a partition, subsequent to such acquisition, takes place. In the present case, there is a clear finding of the learned Tribunal that the sources of investment in FDRs. were from the agricultural income as well as loans borrowed in the name of the appellant. In these circumstances, the said FDRs. ought to have been treated as the property of the appellant-Hindu undivided family and the interest income derived from such FDRs were assessable in the hands of the appellant-Hindu undivided family. Reference made, in this regard, to the case of V.D. Dhanwatey vs. CIT reported in (1968) 68 ITR 365 (SC), by Mr. Agarwalla, is also not misplaced inasmuch as in V.D. Dhanwatey (1968) 68 ITR 365 (SC), the apex court observed and held as follows (page 369): The general doctrine of Hindu law is that property acquired by a karta or a coparcener with the aid or assistance of joint family assets is impressed with the character of joint family property. To put it differently, it is an essential feature of self-acquired property, that it should have been acquired without assistance or aid of the joint family property. The test of self-acquisition by the karta or coparcener is that it should be without detriment to the ancestral estate. To put it differently, it is an essential feature of self-acquired property, that it should have been acquired without assistance or aid of the joint family property. The test of self-acquisition by the karta or coparcener is that it should be without detriment to the ancestral estate. It is, therefore, clear that before an acquisition can be claimed to be a separate property, it must be shown that it was made without any aid or assistance from the ancestral or joint family property. The principle is based on the original text of Yagnavalka who, while dealing with property not liable to partition states. 34. We may pause here to point out that when a Hindu family has been assessed, under the Act, as Hindu undivided family, it is not necessary that it must be proved to have continued as Hindu undivided family, for, without such evidence also, whenever the assessment under the Act is required to be made in respect of a person who has been earlier assessed as Hindu undivided family, it shall be treated to have continued as Hindu undivided family unless partition, total or partial, in terms of the provisions of Sub-section (3) of Section 171 of the Act has been recorded. In this regard, we may take note of the position of law as decided by the Allahabad High Court in Ambika Prasad Sonar vs. CIT reported in (1987) 168 ITR 444 (All). In Ambika Prasad Sonar (1987) 168 ITR 444 (All), the court has held thus (page 448): In our opinion, in order that Sub-section (1) may apply, all that is necessary is that there is a family which prior to the relevant claim for partition has been assessed to tax as Hindu undivided family. The fact that the family has been so taxed prior to the relevant assessment year is sufficient to bring that family within the expression 'hitherto assessed as undivided family'. It is not a further condition of Sub-section (1) of Section 171 that the family must continuously be so assessed without any break in respect of its income or must have been so assessed till the immediately preceding year in which the claim of partition in made under Section 171(2) of the Act. Such a requirement is not warranted from the language of the aforesaid provisions. 35. Such a requirement is not warranted from the language of the aforesaid provisions. 35. We see no reason to take a view different from what the Allahabad High Court has taken in Ambika Prasad Sonar, (1987) 168 ITR 444 (All). 36. Mr. Bhuyan, learned standing counsel for the Revenue, in support of his contention that the deeming provisions of Section 171 of the Act apply only to the Mitakshara school of Hindu law and not to the Dayabhaga school of Hindu law, has referred to CIT vs. Balai Chandra Paul, (1976) 105 ITR 666 (Cal). Yet another decision, which he has referred to is the case of CWT vs. Gauri Shankar Bhar, (1972) 84 ITR 699 (SC). 37. While considering the case of Balai Chandra Paul, (1976) 105 ITR 666 (Cal), what needs to be noted is that the Calcutta High Court did not have the benefit of the apex court's decision in Kalloomal Tapeswari Prasad (HUF) vs. CIT, (1982) 133 ITR 690 (SC), wherein the deeming provisions of Sub-section (1) of Section 171 of the Act have been succinctly explained. This apart, as far as the case of Gauri Shankar Bhar, (1972) 84 ITR 699 (SC) is concerned, suffice it to point out that a cautious reading of this decision shows that the court was concerned with the individual property of the deceased Prafulla Chandra Bhar and it had been conceded, in the apex court, that on the death of the said Prafulla Chandra Bhar, his property had devolved on his heirs in severalty and that each one of his heirs had taken a definite share in the property left by the deceased. In such circumstances, the apex court observed, in view of that concession it is not necessary for us to decide in this case whether a Dayabhaga Hindu family can be considered as a Hindu undivided family within the meaning of Section 3 of the Wealth-tax Act, 1957. In the light of the observations, made in Gauri Shankar Bhar, (1972) 84 ITR 699 (SC), it becomes clear that in Gauri Shankar Bhar, (1972) 84 ITR 699 (SC), the apex court did not decide the question as to whether a Dayabhaga Hindu family would or would not be considered as a Hindu undivided family within the meaning of the provisions of Section 3 of the Wealth-tax Act, 1957. Thus, the two decisions, which Mr. Thus, the two decisions, which Mr. Bhuyan has relied upon, namely, Balai Chandra Pal, (1976) 105 ITR 666 (Cal) and CWT vs. Gauri Shankar Bhar (1972) 84 ITR 699 (SC), do not really help the case of the Revenue. 38. One of the decisions referred to by Mr. Bhuyan is the decision of the Kerala High Court in Shantilal C. Shah vs. CIT reported in (1988) 169 ITR 805 (Ker). In this case, the Kerala High Court was called upon to adjudge the effect of the Kerala Joint Hindu Family System (Abolition) Act, 1975, on the provisions of Section 171 of the Act. The court held that with coming into force of the Kerala Joint Hindu Family System (Abolition) Act, 1975, with effect from 1.12.1976, there is deemed partition under the Hindu law and that Hindu joint family has come to an end and, hence, the machinery, under Section 171 of the Act, becomes inapplicable. While considering the case of Shantilal C. Shah (1988) 169 ITR 805 (Ker) what needs to be noted is that the Supreme Court in CWT vs. Smt. Champa Kumari Singhi (1972) 83 ITR 720 (SC), has, in no uncertain words, held that there can be a Hindu undivided family under the Dayabhaga school of Hindu law and that the Hindu undivided family is a separate assessee and includes all the schools under the Hindu law. Thus, Dayabhaga school of Hindu law too may be assessed as Hindu undivided family. Merely because of the fact, therefore, that the appellant belongs to the Dayabhaga school of Hindu law, it does not necessarily mean that the appellant cannot be a Hindu undivided family. The primary difference between the Dayabhaga school of Hindu law and the Mitakshara school of Hindu law is that while, in Mitak-shara school of Hindu law, a person, from the inception, acquires a right in the family property in the Dayabhaga school of Hindu law, the property devolves on the death of a Hindu on his heirs and successors. In the Mitakshara school of Hindu law, though a coparcener acquires interest, in the ancestral property, on his conception, his interest, in the joint family, does not remain fixed and keeps fluctuating inasmuch as his interest expands, when the family property expands, and when his family loses property or part of the property, his interest, in the family property, automatically, reduces. As against this, in the Dayabhaga school of Hindu law, a Hindu, on the death of his father, succeeds to a definite share in the property left by his father. Whereas a Hindu, under the Mitakshara school, becomes a coparcener, by operation of law, a Hindu, governed by the Dayabhaga school, becomes a coparcener by an act of volition. What is, however, important to bear in mind is that even a joint Hindu family, governed by the Dayabhaga school, will be deemed to have remained joint until the time the contrary is proved. 39. A careful reading of the case of Shantilal C. Shah (1988) 169 ITR 805 (Ker) shows that the decision of the apex court in Kalloomal Tapeswari Prasad (HUF) (1982) 133 ITR 690 (SC), had not been brought to the notice of the Kerala High Court. In Shantilal C. Shah (1988) 169 ITR 805 (Ker), the attention of the court seems to have also not been drawn to its earlier decision in Sankanarayan Bhattathiripad vs. ITO reported in (1985) 153 ITR 562 (Ker), though, in Sankaranarayanan Bhattathiripad vs. ITO reported in (1985) 153 ITR 562 (Ker), the Kerala High Court had held thus (page 567): A joint family is disrupted either by an actual partition by volition of parties or by arbitration or suit, or by a deemed partition by operation of the law. In either event, the family comes to an end. But until the partition has led to a physical division of the properties, whether in the case of an actual partition or statutorily deemed partition the income derived from such properties, for the purpose of assessment, will continue to be impressed with the joint family character. This is the effect of Section 171 of the Income Tax Act. By the State enactment, the Legislature has not in any manner intended to intrude into the domain of the Income Tax Act. What is payable under the Income Tax Act must he paid in terms of the provisions of that Act. 40. While considering the case of Shantilal C. Shah (1988) 169 ITR 805 (Ker), what needs to be also borne in mind is that the Income Tax Act, 1961, is a Parliamentary legislation and for its application, survival or existence, it does not depend on any State legislation. 40. While considering the case of Shantilal C. Shah (1988) 169 ITR 805 (Ker), what needs to be also borne in mind is that the Income Tax Act, 1961, is a Parliamentary legislation and for its application, survival or existence, it does not depend on any State legislation. Consequently, even if a State legislation brings some changes in personal law of the Hindus, it will have no bearing so for as the scope and ambit of the provisions for assessment contained under the Income Tax Act, 1961, are concerned. When the Income Tax Act, 1961, deems a Hindu undivided family to have continued as a Hindu undivided family, a change, introduced by a State legislation on the jointness of a Hindu family, will have no bearing on these deeming provisions of the Income Tax Act, 1961. 41. Yet another case, which Mr. Bhuyan relied upon is Manji Dana vs. CIT (1966) 60 ITR 582 (SC). The case of Manji Dana (1966) 60 ITR 582 (SC) does not help the case of the respondents at all inasmuch as in Manji Dana (1966) 60 ITR 582 (SC), the assessee wanted to raise a new plea, for the first time, regarding the status in which the income should be assessed. As this plea had not been raised by the assessee before the Assessing Officer and the first appellate authority, the Tribunal did not allow the assessee to raise such a plea. The High Court too decided against the assessee. On further appeal, the Supreme Court has held as follows (page 586): Manji Dana submitted a return in the status of an individual pursuant to a notice issued under Section 34(1)(a). It was open to the Income Tax Officer to accept the admission made by Manji Dana that the income belonged to the assessee and not to the Hindu undivided family. If, thereafter, it was contended that assessment could not be made pursuant to a notice under Section 34(1)(a), it was necessary to investigate the question whether the income was of a Hindu undivided family or of the appellant individually and that unquestionably demand enquiry into facts. We are, therefore, unable to accept the argument of Mr. Pathak that the new plea sought to be raised did not necessitate enquiry into facts which had not been investigated. 42. We are, therefore, unable to accept the argument of Mr. Pathak that the new plea sought to be raised did not necessitate enquiry into facts which had not been investigated. 42. From the discussions held above, as a whole, it is clear that the finding, reached by the learned Tribunal, to the effect that the appellant could not prove that it was a Hindu undivided family is perverse and not at all sustainable in the face of the materials on record and the reasons assigned by the learned Tribunal itself. This apart having been assessed until before the impugned assessments, as a Hindu undivided family, the appellant could not have been treated or assessed, in any status, other than a Hindu undivided family, when there was not even an iota of material on record showing that any partition of the property of the Hindu undivided family, in question had been recorded, in the past, in terms of the provisions of Sub-section (3) of Section 171 of the Act. Thus, viewed from any angle, the impugned orders are not sustainable and need to be interfered with. 43. In the result and for the reasons discussed above, these appeals succeed. The orders impugned in the appeals are accordingly set aside and the appellants are directed to be treated as a Hindu undivided family for the purpose of the assessment, which formed the subject-matter of the present appeals. 44. With the above observations and directions, these appeals shall stand disposed of. 45. No order as to costs. 46. Send back the LCRs. In favour of Assessee.