Judgment

JAGANMOHAN REDDY, J.:-This appeal is by certificate and though no reasons have been given for the grant of it, the learned advocate for the respondent does not contest that a question of law does arise and has not objected to the certificate. The question that was referred to the High Court by the Tribunal under S. 66 (1) of the Indian Income-tax Act, 1922 (hereinafter called the Act ) is as follows:

"Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that in the matter of calculation of undistributed balance of the total income of an assessee for the purpose of levy of super-tax in terms of S. 23-A (1) of the Income-tax Act, 1922, the Income-tax Officer should have taken into consideration dividend declared by the company after the period of 12 months immediately following the expiry of the previous years relevant to the assessment years 1958-59 and 1959-60 but before the date on which the orders under S. 23-A (1) had been made by the Income-tax Officer?

The High Court answered that question in the affirmative and against the department following the reasoning which was obiter in the case of Moore Avenue Properties Private Ltd. v.