Section 150(1) of the Income Tax Act, 1961, is applicable to assessment years prior to the commencement of the 1961 Act, by virtue of Section 297(2)(d) of the Act.

Satish Chandra, J.

1. SRI Mahadeo Prasad, the petitioner, challenges the validity of notices issued under Section 148 of the I.T. Act, 1961, for the assessment years 1953-54 to 1963-64.

2. MAHADEO Prasad, the petitioner, was being assessed in the status of HUF consisting of himself, his mother, wife and three sons. For the assessment year 1949-50, the petitioner filed a return in his individual capacity on the footing that there had been a total partition under Section 25A of the Indian I.T. Act, 1922. In the alternative, he claimed partial partition of some of the joint family properties. Both these claims were initially negatived and the entire income was assessed in the hands of the HUF. The return filed by the petitioner in his individual capacity was finalised by holding that there was no income assessable in his individual capacity.

The HUF went up in appeal, and, ultimately, the Tribunal accepted that there had been a partial partition of some of the properties with effect from the different dates. In respect of the other sources of income, the matter was taken up in reference and this court in a decision reported in Mahadeo Prasad Rais v. ITO [1972] 84 ITR 48, held that the other sources of income of the HUF were also partitioned. Consequent on these decisions of the Tribunal and the High Court, income from a variety of sources were excluded from the assessment of the HUF.

3. ON 19th March, 1977, the petitioner was served with notices under Section 148 of the Act of 1961, in respect of the assessment years 1953-54 to 1963-64. The petitioner has come to this court for quashing these notices. His case in the writ petition was that he had not concealed any income. He furnished all relevant and material particulars of the income, and hence, there was no case for reopening the assessments. It was also claimed that the notices were barred by time and that the sanction granted by the CBDT was mechanical and without the application of mind to the facts.

4. IN the counter-affidavit it has been clarified that in accordance with the final decision of the Tribunal as well as the High Court, various categories of income were excluded from the assessment of the HUF on the footing that there having been a partition in the family, those categories of income were assessable in the hands of the individual members of the family. The impugned notices were hence issued in order to bring those categories of income to tax in the hands of the petitioner in his individual capacity. It was averred that, in view of Section 150 of the I.T. Act, 1961, the notices were not barred by limitation.

At the hearing, Mr. Raja Ram Agarwal, appearing for the petitioner, perused the record of the case in which the Board had accorded its sanction, and after perusal he gave up the point that the Board had accorded the sanction mechanically or without the application of mind. He also stated that he was not questioning the department's case that the notices have been issued in order to bring the income to assessment because of findings recorded in the appellate orders in respect of the HUF. He stated that this question would be agitated before the departmental authority when the proceedings for reassessment are taken. This point is, therefore, left open.

5. THE only question pressed at the hearing before us was that the notices were barred by limitation.

6. IT is apparent that for the assessment years 1953-54 to 1961-62, the proceedings were conducted under the Indian I.T. Act of 1922. The appeals were decided under Section 30 thereof. But for the assessment years 1962-63 and 1963-64, the assessment proceedings were held under the Act of 1961. Section 297 of the Act of 1961 repeals the Indian I.T. Act of 1922. Sub-section (2) thereof makes transitory provisions. Clause (d) is material. IT reads:

" 297. (2) Notwithstanding the repeal of the Indian Income-tax Act, 1922 (11 of 1922) (hereinafter referred to as the repealed Act),--......

(d) where in respect of