Satyanarayana Rao, J.-Under section 66(1) of the Income-tax Act read with section 21 of the Excess Profits Tax Act, at the instance of the Commissioner of Excess Profits Tax, the Income-tax Appellate Tribunal has referred to us the following question:

“Whether on the facts and in the circumstances of the case the Tribunal’s decision that the proceedings initiated under the Excess Profits Tax Act against the Hindu undivided family by issuing notice on 8th August, 1944, on a member of the disrupted family and assessing the family’s income to excess profits tax thereon-partition and disruption having been accepted by the department on 18th March, 1943-was valid in law?”

The assessee is a Hindu undivided family, viz., Messrs. Jivaraj Topun and Sons, Madras. The chargeable accounting periods with which we are concerned in this reference are (1) from 1st September, 1939 to nth November, 1939; (2) from 12th November, 1939 to 30th October, 1940; and (3) from 31st October, 1940 to 4th October, 1941. A notice under section 13 of the Excess Profits Tax Act was served on Tricumdas Jamnadas to file a return under the Act. In reply to that notice Jamnadas J. Topun submitted a nil return on 5th October, 1944, in which it was stated that the family became divided on 4th October, 1941 and that the Hindu undivided family which is treated as an assessee by the revenue authorities was no longer in existence. The partition put forward has been accepted by the department and there is no dispute now regarding it. The excess profits tax officer did not accept the nil return, but completed the assessment on the footing that the business was the business of a joint family and that the notice issued under section 13 and served on a member of one of the groups that came into existence after the partition was valid. On appeal, however, the Appellate Assistant Commissioner disagreed with this view and set aside the assessment, which was confirmed on a further appeal by the Appellate Tribunal. The view taken by both the authorities was that as the undivided family ceased to exist on the date on which the notice was issued there was no basis for calling upon one of the members of the joint family which once existed as such to submit a return with reference to the business of the undivided family. It was pointed out by the Appellate Tribunal that section 63 of the Income-tax Act which provides for service of notice and which is also a provision made applicable to proceedings under the Excess Profits Tax Act could not be applied to a case where the undivided family ceased to exist on the date of the notice. Hence this reference.

Mr. Rama Rao Sahib, the learned counsel for the Excess Profits Tax Commissioner, argued that the scheme of the Excess Profits Tax Act is that it is the business that is treated as assessable to tax and as there is no time limit within which an assessment could be made under the Excess Profits Tax Act, unlike the Income-tax Act, even if the business had ceased as there was a partition between the members of an undivided family, it was open to the authorities to assess the profits of that business under the Act by serving a notice on any member of the family to which the business once belonged. He drew our attention to the several provisions of the Act in support of his contention. Section 4 of the Act is the charging section and it does not, in terms, refer to a person as being the assessee in respect of the profits of the business. But it would be noticed that the proviso to that section refers to section 4(3) of the Indian Income-tax Act and the body of the section itself refers to the assessment in respect of any business to which the Act applies to be charged, levied and paid on the amount by which the profits during any chargeable accounting period exceed the standard profits. The word “paid” in the context can only refer to a person and it is an indication that the Act contemplates assessment of the tax on a person though on the basi

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