C.S.P. Singh, J. - (1.)THE assessee, who is a partner in the firm, Ayodhya Prasad Gopinath, filed a return showing an income of Rs. 17,951 being share income from that firm. He showed his status as that of a HUF consisting of himself and his wife. THE assessee had, before becoming a partner in the firm, separated from his father and brothers, who formed a HUF on 17th of October, 1962, and an amount of Rs. 3,216 was given to him as his share. This amount was invested by the assessee in the firm, Ayodhya Prasad Gopinath. At the time when he became a partner of this firm, he was unmarried but during the previous year relevant to the assessment year 1971-72, he married and it was for this reason that he claimed that the share income received from the firm should be taxed in the hands of the HUF consisting of himself and his wife. THE ITO, however, did not accept this plea and taxed him in the status of an individual as in the earlier assessment years. THE decision of the ITO was reversed by the AAC. An appeal filed by the department has, however, succeeded. THE Tribunal has now, at the instance of the assessee, referred the following question for the opinion of this court :
" Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the share income from the firm, Ayodhya Prasad Gopinath, could be assessed in the hands of the assessee in his capacity as ' individual '."

(2.)COUNSEL for the assessee urged that as the nucleus for the investment made by the assessee in the firm came from the assets of the HUF the amount received by the assessee was ancestral property in his hands and as such the income that accrued from the investment of this money in the firm had to be taxed in the hands of the assessee in the status of a HUF and not as an individual. In the alternative, it is also urged that in any event if the share income from the firm could be treated as the individual income of the assessee in the earlier assessment years, it had to be treated as the income of the HUF as from May 13, 1970, when the assessee married.
In the present reference, we are not concerned with the correctness or otherwise of the assessments made in the earlier assessment years where the assessee was assessed in the status of an individual. In the reference, we have to consider whether the assessment should be made in the status of a HUF family on account of the assessee's marriage.

Two questions have to be determined by us in order to resolve this controversy. Firstly, as to whether an individual coparcener on a partition constitutes a HUF for the purposes of the I.T. Act, 1961, and secondly, whether on the marriage of the individual coparcener, a HUF comes into existence so as to entitle an assessee to claim the advantage of being assessed in the status of a HUF. In order to determine these questions it will be useful to refer to certain decisions of the Supreme Court which have considered the difference between a coparcenary and a HUF and have also indicated the general category of persons who go to constitute a HUF.

(3.)WE will begin by considering the decision of the Supreme Court in the case of Gowli Buddanna v. CIT [1966] 60 ITR 293 (SC). One of the questions that their Lordships had to consider in that case was as to whether it was necessary that there should be two male members in order to constitute a HUF. While considering this controversy their Lordships considered the difference between a Hindu coparcenary and a Hindu joint family and also categorised the persons who go to constitute a HUF. It was observed (pp. 295, 296) :
" The first contention is plainly unsustainable. Under Section 3 of the Income-tax Act, not a Hindu coparcenary but a Hindu undivided family is one of the assessable entities. A Hindu joint family consists of all persons lineally descended from a common ancestor, and includes their wives and unmarried daughters. A Hindu coparcenary is a much narrower body than the joint family ; it includes only those persons who acquire by birth an interest in the joint or coparcenary property, these being the sons, grandsons and great-grandsons of the holder of the joint property for the time being. Therefore, there may be a joint Hindu family consisting of a single male member and widows of deceased coparceners. In Kalyanji Vithaldas v. CIT [1937] 5 ITR 90 (PC), delivering the judgment of the Judicial Committee, Sir George Rankin observed :

' The phrase " Hindu undivided family " is used in the statute with reference not to one school only of Hindu law, but to all schools ; and their Lordships think it a mistake in method to begin by pasting over the wider phrase of the Act the words " Hindu coparcenary ", all the more that it is not possible to say on the face of the Act that no female can be a member.'

The plea that there must be at least two male members to form a Hindu undivided family as a taxable entity also has no force. The expression ' Hindu undivided family ' in the Income-tax Act is used in the sense in which a Hindu undivided family is understood under the personal law of Hindus. Under the Hindu system of law a joint family, may consist of a single male member and widows of deceased male members, and apparently the Income-tax Act does not indicate that a Hindu undivided family as an assessable entity must consist of at least two male members."

The question as to whether a single member, male or female of a partitioned family would be a HUF for purposes of the I.T. Act was left unanswered. The principle relevant for the purposes of this case is that a Hindu joint family consists not only of the male members, but also of their wives and unmarried daughters. Thus, a Hindu joint family came into existence when the assessee married on the 13th of May, 1970 ; the question whether a Hindu joint family should be treated as a HUF was considered by the Supreme Court in the case of N. V. Narendranath v. CWT [1969] 74 ITR 190 (SC) and it was held that the expression " Hindu undivided family " in the W.T. Act was used in the sense in which a Hindu joint family is understood in the personal law of Hindus. It was also laid down that under the Hindu system of law a joint family may consist of a single male member, his wife and unmarried daughters. Although this decision was given under the W.T. Act, it applies equally to cases arising under the I.T. Act, for a HUF has not been denned in the I.T. Act nor under the W.T. Act. Thus, for the purpose of both these Acts, the concept of a HUF as understood under the Hindu law has to be applied.