Judgment

VENKATARAMIAH, J.:- The only question which arises for consideration in these six appeals by certificate is whether an order of assessment passed under the Income-tax Act 1922 (hereinafter referred to as the Act) by the I.-T. O. in the case of a H. U. F. without holding an inquiry into the validity of the claim made within a reasonable time by a member of the Hindu family that a partition had taken place among the members of the family is liable to be merely cancelled in appeal by the Income-tax Appellate Tribunal (for short, the Tribunal) without a further direction to the assessing authority either to modify the assessment suitably or to pass a fresh order of assessment in accordance with law.

2. The assessee is a Hindu undivided family and the assessment years are 1955-56 and 1957-58 to 1961-62. An assessment order made on May 30, 1959 in respect of the assessment year 1955-56 had been set aside by the Appellate Assistant Commissioner on February 24, 1962, with a direction to make a fresh assessment. When fresh assessment proceedings were commenced pursuant to the above said direction in respect of the assessment year 1955-56. the assessment proceedings for the assessment years 1957-58 and 1958-59 were also taken up. Earlier a letter had been addressed on October 10, 1960 by Kapurchand Shrimal to the Income-tax officer in connection with a notice received by the assessee under Section, 18A (1) of the Act in respect of the assessment year 1961-62 stating that all the movable and immovable properties of the assessee had been partitioned by metes and bounds under partition deeds and that the Hindu undivided family (the assessee) was no longer receiving any income as such and there was therefore no question of payment of any advance tax by it. The second para of that letter contained a specific request to record the factum of the partition for the purpose of the Act. Again on June 16, 1961 M/s. S. G Dastagir & Co., addressed, a letter on behalf of the assessee in connection with advance, tax demanded for the assessment year 1962-63, the second para of which contained a similar request for recording the factum of partition. Before the fresh assessments were completed for the three years referred to above a third letter dated March 11, 1962, was addressed to the same officer who received it on the next day itself in which again there was a claim made regarding the partition. But this letter however was written specifically in respect of the assessment year 1957-58. On March 21, 1962, M/s. S. G. Dastagir too addressed a further letter to the Income-tax officer reminding him of the earlier letters of October 10, 1960 and June 16, 1961, and that letter stated :

"Apart from these letters the matter has been discussed with you on a. number of occasions personally during the course of the assessment proceedings of the year 1957-58 and your attention has already been drawn to the fact that an order under Section 25A has to be passed before the completion of the assessment for the year 1957-58. The letter dated 11th March, 1962 was addressed to you by the assessee only when it was gathered that you were going to pass the assessment order for the year 1957-58 without making the contemplated enquiry under Sec. 25A."

3. The assessments for the years 1955-56 to 1958-59 were however completed between August 31, 1962 and March 27, 1963 without holding an inquiry as contemplated by Section 25A of the Act regarding the factum of partition. The income-tax officer thereafter started an inquiry under Sec. 25A and by his order dated Mar. 30, 1965, refused to record the partition. On appeal the Appellate Assistant Commissioner by his order dated November 8, 1967 set aside the said order and directed the Income-tax officer to record the partition under Section 25A as on July 10, 1960. That order became final as no appeal was filed against it by the Department.

4. It should be stated here that the Income-tax officer, passed assessment orders agains