JUDGMENT

SARKARIA, J. :—This appeal on certificate is directed against an appellate judgment, dated August 5, 1969, of a Bench of the High Court of Allahabad. It arises as follows:

2. M/s. S.B. Singhar Singh and Sons (hereinafter called the assessee) were assessed to Excess Profits Tax for the chargeable accounting periods, ending March 31, 1945 and March 31, 1946, under two assessment orders, dated August 26, 1949. The previous years 1936-37 was chosen by the assessee as his "standard period." The profits of that year were Rs. 38,703/-. After deducting the profits of the standard year, the Excess Profit Tax Officer, assessed the tax on the remaining amounts of profits. The Excess Profits Tax thus assessed for the accounting years, was to the tune of Rs. 1,06,181.5 and Rs. 48,978/-, respectively. In his orders, the assessing Officer said that "for reasons detailed in the earlier assessment orders no adjustments are made for capital variations in the standard period and the chargeable accounting period". These reasons as given in the earlier assessment order, dated October 30, 1947, pertaining to the chargeable accounting period ending March 31, 1944, were:

"As complete and regular accounts are not maintained by the assessee, it is not possible to make any adjustment for variations in average capital which cannot be accurately ascertained."

3. Against the orders of assessment, the assessee preferred two appeals on September 24, 1949 to the Assistant Appellate commissioner. By two separate applications dated October 24, 1949, the assessee took an additional ground of appeal - which obviously he had not taken in the original memorandum of appeal - that the Excess Profits Tax Officer had erred in not allowing adjustments on account of the increase and decreased of capital in the relevant chargeable accounting periods. The assessee added that he "was always prepared to file his computations of average capital." Dismissing the appeals by his orders, dated November 24, 1949, the Assistant Appellate Commissioner negatived the assessees contention, in these terms:

"As in these years no regular accounts have been maintained and it is not possible to make an adjustment for variations in average capital which cannot be exactly ascertained. No figures have been shown to me, nor has any exact working been furnished at this stage. The accounts are left in the same manner as for the earlier years. Profits in the major accounts had to be worked out by the application of a rate to the turnover. I am, thus, unable to allow this contention."

4. Aggrieved, the assessee carried appeals to the Income-tax Appellate Tribunal. In the memorandum of appeals, one of the specific grounds taken was that "the Excess profits Tax Officer and the Assistant Appellate Commissioner had erred in not allowing to the assessee proper standard profits in accordance with the standard period subject to the adjustment on account of the increase and decrease of capital in the relevant chargeable accounting period." It was reiterated that "the appellant was always prepared to file his computation of average capital."

5. This ground relating to standard profits was not discussed by the Tribunal and no finding was recorded thereon. The Excess Profits Tax Appeals and other Income-tax appeals filed by the assessee were heard together by the Tribunal and disposed of by common orders, dated February 24, 1951. In the Income-tax appeals, some relief was granted, but in the Excess Profits appeals, no relief was granted due to the variation of the capital in the chargeable accounting periods of 1945-46 and 1946-47.

6. The assessee on July 27, 1951, made an application under Section 35 of the Income-tax Act, 1922 for rectification of its order to the Tribunbal on grounds other than the one regarding variation in the standard profits due to increase and decrease of the capital. This application was dismissed on August 27, 1951 by the Tribunal on the ground that there was no mistake apparent o