DESAI, C. J. : This is a statement of a case submitted, at the instance of the Commissioner of Income-tax, U.P. by the Income-tax Appellate Tribunal, Allahabad Bench, to this Court inviting to answer the following question :

Whether the business of an Hindu undivided family on which notices under S. 13 of the E. P. T. Act had been served before the disruption of the Hindu undivided family could be subjected to E. P. T. after the disruption of the Hindu undivided family ?

The assessee is a Hindu undivided family which once carried on business in hemp and oilseeds in the name of Neeka Lal Jai Narain and the question is of being assessed to excess profits tax for two chargeable accounting periods, (1) 1-9-1939 to 14-11-1939 and (2) 15-11-1939 to 24-10-1940. Notices as required by S. 13 of the Excess Profits Tax Act were served upon the Karta of the Hindu undivided family on 8-6-1942. On 27-2-1943 it was assessed to the excess profits tax for the first chargeable accounting period but the assessment order was set aside because the assessment on the firm under the Indian Income-tax Act itself was reopened and another assessment order was passed on 31-5-1944. For the other chargeable accounting period an assessment order under the Excess Profits Tax Act was passed against the assessee on 31-5-1944. On 24-10 1944 an application was made to the Income-tax Officer on behalf of the Hindu undivided family to the effect that it had been disrupted with effect from 10-11-1942 and an order was sought for under S. 25-A(1) of the Indian Income-tax Act. On 17-3-1947 the Income-tax Officer passed an order under Section 25-A(1) recognising disruption of the Hindu undivided family with effect from 6-9-1943. Assessment orders under the Excess Profits Tax Act passed in respect of the two chargeable accounting periods on 31-5-1944 were quashed by the Appellate Assistant Commissioner on 17-3-1947 and 9-10-1947 respectively and on 31-7-1950 the Income-tax Officer passed fresh assessment orders in respect of both the chargeable accounting periods. The assessee appealed against the two assessment orders and one of the grounds taken in the memoranda of appeals was that it was not served with any notice issued under Section 13 of the Excess Profits Tax Act and that consequently the assessment was invalid. No argument was advanced in support of this ground in the course of the hearing of the appeals, the only point urged on behalf of the assessee being that relief as a result of reduction in the amount assessed for the purpose of income tax in the corresponding income-tax appeal should be granted. The Appellate Assistant Commissioner maintained the assessment orders. Against his orders appeals were filed before the Tribunal and again the ground was taken in the memoranda of appeals that the assessment was invalid because no notice had been served upon the appellant as required by S. 13. The appellant merely repeated the ground in the same words as used in the memoranda of appeals before the Appellate Assistant Commissioner and did not challenge the statement in the judgments of the Appellate Assistant Commissioner that the argument had not been pressed before him. The Tribunal allowed both the appeals. But on the sole ground that after the disruption of the Hindu undivided family the notices under Section 13 could not be served upon the erstwhile members of it and it could not be assessed to excess profits tax. It relied upon Commr. of Excess Profits Tax, Madras v. Jivaraj Topun and Sons Madras, (1951) 20 ITR 143 : (AIR 1951 Mad 952).

2. The Commissioner, Income-tax, made application under S. 66(1) of the Income-tax Act for referring the question of law arising out of the Tribunal's orders to this Court. The applications were opposed by the assessee. In its reply to the application it ascertained that there was no finding (in the Tribunal's judgments) that any notices under Section 13 was served on the Hindu undivided family on 8-6-1942 and that in it