Rajagopala Ayyangar, J.-The question referred to this Court for its determination under section 66 (1) of the Indian Income-tax Act is:

“Whether the assessment, for 1941-42 assessment year completed on 24th March, 1942, having become final, relief under section 25(4) claimed by the assessee on his application, dated 16th March, 1950, is due and requires investigation on facts?”

The facts necessary to understand the question raised are briefly these. P.S.RM Ramaswami Chettiar constituted with his son Subramaniam Chettiar, a Hindu undivided family. There was a partition in the family between the father and the son on the 14th of March, 1941, the terms and conditions of which were embodied in a deed executed between the parties on the 9th of April, 1941. This division was accepted by the departmental authorities under section 25-A of the Act on 28th January, 1942, in respect of the assessment for the year 1941-42. The year of account for the assessee was the Tamil year and the relevant accounting year was 13th April, 1940 to 13th April, 1941. The assessment of the family for the year 1941-42 in respect of the income for the period from 13th April, 1940 was completed on 24th March, 1942. There were, however, appeals to the Appellate Assistant Commissioner against this assessment and a remand and it was finally completed by an order of the Income-tax Officer, dated 15th April, 1944. That assessment has become final, and no appeal has been preferred up till now against that assessment order.

While so, by a petition dated 20th August, 1948, Ramaswami Chettiar claimed that the foreign business of the family had suffered tax under the provisions of the Indian Income-tax Act, VII of 1918, and, as such the family was entitled to the benefit of the provision enacted in section 25(4) of the Act for the period 13th April, 1940 to 14th March, 1941. The Commissioner of Income-tax, Madras, refused to re-open this assessment and passed an order to that effect on 15th November, 1948. Ramaswami Chettiar then moved the Central Board to grant the necessary relief, which was denied by the Commissioner. The Central Board also declined this request.

Thereupon on the 16th of March, 1950, he filed, what we can only term as a miscellaneous application before the Income-tax Officer, Special Circle, Madurai. After setting out the history of the unsuccessful applications made by him to the Commissioner and to the Central Board this application stated:

“Under the Act there is no time limit for presenting an application under section 25(4)”

and then it continued:

“It is respectfully submitted that the question really involved was not taken into consideration in rejecting the claim by the Central Board”

and finally it wound up with a prayer:

“to reconsider your petitioner’s claim and render justice.”

It will be seen that this was not an application contemplated by any of the provisions of the Indian Income-tax Act; and it is for this reason that we have termed it a miscellaneous petition.

The Income-tax Officer referred to the previous orders on the subject by the departmental authorities and rejected the claim for relief. Against that order Ramaswami Chettiar preferred an appeal to the Appellate Assistant Commissioner, Tiruchirapalli, who held that the appeal was incompetent, as it was not covered by any of the provisions of section 30 of the Indian Income-tax Act.

Ramaswami Chettiar took the matter on further appeal to the Appellate Tribunal. The Tribunal held that the Appellate Assistant Commissioner was wrong in holding that no appeal lay to him. It held that the claim for relief was barred by limitation, and so it considered that no useful purpose would be served by remanding the matter to the Assistant Commissioner and dismissed the appeal. The Tribunal, however, stated the question which we have set out above for the determination of this Court.

Learned counsel for Ramaswami Chettiar, the applicant, addressed to us elaborate arguments regarding the proper constructi

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