JUDGMENT

SABYASACHI MUKHARJI, J.:— These appeals by certificate granted by the High Court of Allahabad under S. 66A (2) of the Indian Income-tax Act, 1922, arise out of judgment delivered and order passed on 3rd January, 1973 by the High Court of Allahabad in Income-tax Reference No. 450 of 1969 (reported in 1973 Tax LR 598) (FB). The following question of law had been referred to the High Court for consideration under Sec. 66 (1) of the Income-tax Act, 1922 by the Appellate Tribunal, Allahabad Bench, Allahabad.

"Whether, on the facts and in the circumstances of the case, valid assessments could be made on 31st May, 1962, for the assessment years 1948-49 and 1949-50 on the basis of voluntary returns of income filed under Section 22 (1) of the Indian Income-tax Act, 1922 on 18-11-1950?"

2. The matter came up before a Division Bench of the High Court and as there was a previous bench decision of that Court in the case of Sool Chand Ram Sewak v. Commr. of Income-tax U. P. (1969) 73 ITR 466, which supported the revenues case and as the division bench before whom this case came was unable to accept that view, the division bench referred the case to a larger Bench. This reference thereafter came before a Full Bench consisting of Gulati, H. N. Seth & C. S. P. Singh, JJ. Gulati and C. S. P. Singh, JJ. answered the question in the affirmative in favour of the revenue and against the assessee. Seth J., however, was in favour of asseasee. In view of the majority the question was answered in favour of the revenue and in affirmative.

3. Before we deal with the question in controversy, it will be necessary to note some of the relevant facts. There were originally four appeals for the assessment years 1946-47, 1947-48, 1948-49 and 1949-50. As the appeals for the assessment years 1946-47 and 1947-48 were withdrawn by the revenue, we are now concerned with appeals for the assessment years 1948-49 and 1949-50.

4. The present assessee is a branch of a bigger Hindu undivided family known as Nathu Ram Jawahar Lal, Jhansi.

5. The bigger Hindu undivided family of M/s. Nathu Ram Jawahar Lal was partitioned on 19th May, 1945, and the present assessee along with another smaller H. U. F. came into existence and the said bigger H. U. F. had made a claim in respect of the partition under S. 25A of the Indian Income-tax Act, 1922. While this claim was pending the present assessee filed voluntary returns under Section 22 (1) of the Act for the assessment years 1946-47 to 1949-50 on 10th November, 1950. The said claim of partition by the bigger H. U. F. was rejected by the Income-tax Officer and also by the Appellate Assistant Commissioner. The said H. U. F. thereafter, filed appeals to the Appellate Tribunal in respect of the order under claim of partition under Section 25A of 1922 Act which by its order dated 31st August, 1954 accepted the claim under Section 25A of 1922 Act and the Tribunal passed orders on that basis in the appeals relating to the assessment orders in respect of the bigger H. U. F. on 28th October, 1954. The Income-tax Officer, thereafter, initiated proceedings under Section 34 of the Income-tax Act of 1922 for assessing the smaller Hindu undivided family, the present assessee in view of the fact that the claim for disruption of the bigger H. U. F. had been accepted by the Tribunal. The present assessee filed fresh returns of income on 12-4-1955 in response to notices under Section 34 of 1922 Act. The returns originally filed were under Section 22 (1) and were filed in 18th November, 1950. The assessees objection regarding the validity of the assessments being made under Section 34 on merits as well as on point that the time for making the assessment under Section 34 had already expired, was rejected by the Income-tax Officer. He, therefore, completed the assessments on 8-9-1955 under Sec. 23 (3) read with Section 34 of the Income-tax Act, 1922 The assessee could not get any decision in his favour either from the Appellate Assistant Commissio