The Appellate Assistant Commissioner has the authority to direct the Income-tax Officer to include a sum in the re-assessment, even though it was not the subject of the appeal before him.

Kanhaiya Singh, J.

1. This is a reference under Sec. 66 (1) of the Income-tax Act by the Income-tax Appellate Tribunal, Patna Branch, asking the opinion of this Court upon the following question :

"Whether in the re-assessment made by the Income-tax Officer in pursuance of the order of the Appellate Assistant Commissioner dated 27-6-1950, he was competent, to include the sum of Rs. 64,000 or any portion thereof, in the total income of the family ?

2. The assessee Bishwanath Prasad Bhagwat Prasad, Siwan, was assessed to income-tax for the assessment year 1946-47 corresponding to the accounting year October, 1944 to October 1945. Bishwanath Prasad and Bhagwat Prasad, sons of Phagoolal, constitute along with their sons a joint Hindu family. Phagoolal, and his two brothers, Ganeshlal and Bhagilal were at one time members of a joint Hindu family. Phagoolal separated from his two brothers long before 1944. The assessee family had acquired a half share in the firm of Bihar Ginning Factory and Oil Mills, Siwan, for Rs. 64,000 during the accounting year. Then, the firms books showed net cash credit of Rs. 18,730 in favour of the assessee. In the course of the original assessment for 1946-47 the Income-tax Officer had asked the assessee to explain the nature and the source of the two sums, one of Rs. 64,000 and the other of Rs. 18730. The assessee explained by saying that their father Phagoolal was the karta of the family consisting of himself and his two brothers, Ganeshlal and Bhagilai, and during the period of his kartaship he had misappropriated out of the family funds a sum of Rs. 84,000 and the assessee was possessed of this amount at the time of purchase of the half share in the Bihar Ginning Factory and Oil Mills and that the purchase price of Rs. 64,000 and the cash credit of Rs. 18,730 formed part of the same defalcated amount. The Income-tax Officer accepted the explanation so far as it concerned Rs. 64,000 but did not accept it regarding the source of the net cash credit of Rs. 18,730 in the personal account of the family in the firms books. He accordingly included the sum of Rs. 18,730 in the assessment of the family. An appeal from this assessment was taken to the Appellate Assistant Commissioner. After hearing the party, the Appellate Assistant Commissioner was not satisfied with the explanation regarding the source of the said sum of Rs. 64,000 and asked for a report from the Income-tax Officer after thorough investigation as to the circumstances in which a differentiation between the two amounts was made in the assessment and whether both the amounts should not be accorded a similar treatment. After necessary investigation, the Income-tax Officer reported that it had not been proved that Phagoolal had misappropriated Rs. 80,000 as contended by the assessee and that no other evidence had been adduced to indicate the source of the sum of Rs. 64,000. On receipt of this report, the Appellate Assistant Commissioner of Income-tax set aside the assessment and remanded the case for re-assessment in the following terms :

"The facts above would show clearly that there was absolutely no Justification [or making any discrimination in regard to the two sums above. If the absence of the Home Chest account was to be the handicap in respect of one, it could not cease to be so in regard to the other. If, on the other hand, the existence of Rs. 811,000 with assessee Was to be a plausible explanation, both the amounts must be covered, and not only one. The Income-tax Officer was therefore, called upon to submit an explanation as to why similar treatment to both the amounts was not to be aecorded. The present Income-tax officer (Shri N. Dutta) has submitted his report after a perusal of the connected Court papers, and he says that the assets, that were adjudicated in assessees share, were confined to Rs. 5,000 only in shape of ornaments and 1/3rcl of total assets of the old family, i. e., Rs. 31,334 only, which may not all be in ca