Varadachariar, J.

1. This appeal arises out of a suit for a declaration that the plaintiff is not liable to be assessed to Income Tax on the income received by him from his business in Saigon and for recovery of tax levied from him for the years 1929-30 and 1930-31. Issue 1 in the case raised the question whether the suit was not barred by Section 67, Income Tax Act 11 of 1922. Dealing with this point as a preliminary issue, the District Munsif dismissed the suit as barred by that section. The lower appellate Court was of opinion that the suit would be maintainable if the assessment was ultra vires or had been made without jurisdiction. In view of the allegations in the plaint, it held that the Court must decide on evidence whether the plaintiff was permanently residing in French territory, as, in that case, any income there received by the plaintiff from the Saigon business would not be income assessable under the Act. It recorded as concession by the plaintiffs vakil that issue 6 in the case, viz.:

Whether the assessment was made without proper inquiry and without giving the plaintiff an opportunity to prove his contentions could not be tried by the civil Court. Issue 5(a)