DIXIT, C.J.

In this reference under section 66(1) of 1he Income-tax Act at the instance of the assessee, the questions formulated by the Appellate Tribunal, Bombay, for our opinion are:-

Whether on the facts and circumstances of the case the Income-tax Officer was entitled to re-open the assessment in respect of the escapement of deemed income under the second proviso to section 10(2)(vii) of the Act, when the notice dated 11-11-1952 under section 34(1)(b) mentioned only capital gains ? and

Whether on the facts and circumstances of the case there was a transfer or sale of the colliery on 1-4-1947 so as to attract the provisions of the second proviso to section 10(2)(vii) and section 12-B of the Act for the assessment year 1948-49 ?

On 31st March 1947 the assessee M/s. D.B. Ballabhdas Mannoolal Kanhaiyalal, an unregistered firm which was the owner of a colliery known as 'Hindusthan Lalpeth Colliery of Chanda', entered into an agreement with the Perfect Pottery Co. Ltd., Jabalpur, for the sale of the colliery including machinery, fixtures, land etc. for Rs. 4 lakhs. The agreement provided, inter alia, (1) that the vendors would sell and the purchasers would purchase as from 1st Apri