SHELAT, C.J. : This reference arises out of re-assessment of the assessee for the assessment years 1944-1945, 1945-1946 and 1940-1947, the relevant previous years being Samvat Years 1999, 2000 and 2001 respectively. The reassessment proceedings were adopted having recourse to the second proviso to S. 34(3) of the income-tax Act of 1922. The facts for all the assessment year are similar and hence, it is possible to take the facts relevant to the assessment year 1944-1945 as typical. That was also the way in which the case was presented to us by the learned Advocate General.

2. The assessee Shantilal Punjabhai used to be assessed in the status of an individual. For the assessment year 1944-1945, he filed his returns in which he included his share of profits in the firm of Messrs. Bharat Cloth Agency. The assessee, at the material time, was a member of the Hindu undivided family known as Punjabhai Deepchand. In the course of the assessment proceedings of that family also for the assessment year 1944-1946, the Income-tax Officer found that the assessee was the nominee of the Hindu undivided family in the said firm and. Therefore, included the share of profits of the assessee in the said firm in the computation of the total income of the Hindu undivided family. The Hindu undivided family thereupon went in appeal before the Tribunal and the Tribunal, by its order dated May 6, 1953, held that there was not sufficient evidence from which it could be said that the assessee was a partner in the said firm as the nominee of the Hindu undivided family, and directed that the share of profits of the assessee should be deleted from the assessment of the H. U. F.

3. Thereafter, the Income-tax Officer issued a notice under S. 34 read with Sub-Section (3) of S. 34 dated March 30, 1954 and served it on the assessee on April 1, 1954, with a view to assessing in his hands his share of profits from Messrs Bharat Cloth Agency. In due course, the Income-tax Officer completed the assessment and added Rs. 11,159 to the total income of the assessee. On appeal by the assessee, the Appellate Assistant Commissioner confirmed the assessment and the assessee thereupon went to the Tribunal in a further appeal, contending that the second proviso to S. 34(3) was ultra vires the Constitution as being violative of Article 14 of the Constitution and further that S. 34(3) could not over-rule the main provisions of S. 34 and therefore, the reassessment was time-barred and bad in law. Reliance was placed by the assessee at that time on the decision of the High Court of Bombay in S.C. Prashar v. Vasantsen Dwarkadas, (1956) 29 ITR 857 : ((S) AIR 1956 Bom 530). The two members of the Tribunal while agreeing that the assessee's appeal should be allowed, gave differing reasons. The Accountant Member held that once it was established that the provisions of S. 34(3) were applicable to the facts, it made no difference to its application whether the period of limitation under S. 34(1) was four years or eight years as Sub-Section (3) abrogated both of them. On the question of constitutional invalidity, he held, however, against the Department. The President, on the other hand, held that the period of limitation in this case was not eight years but four years, as it was obviously not a case of concealment and therefore, the assessment could have been re-opened under S. 34(1) on or before March 31, 1949, and as amendment of S. 34(3) was not retrospective, he was inclined to hold that the right to issue notice under S. 34 for the assessment year 1944-1945 was already barred when the Amendment Act of 1953 came into force. As regards the question of constitutional invalidity, the President was doubtful whether Article 14 applied and said that he "would leave the matter at that"

4. On these facts, three questions have been referred to us. Namely -

(1) Whether on the facts and in the circumstances of the case, and having particular regard to the finding of the Tribunal that the