JUDGMENT

1. These are two applications under Section 68, Clause (3), Income-tax Act, to this Court praying that the Commissioner of Income-tax, Central and United Provinces, be required to state the case and to refer it to this Court. The facts leading up to these applications are that the applicant was paid a sum of Rs. 30,700 as maintenance allowance by the taluqdar of the Oel estate during the year 1933-34 and an amount of Rs. 36,000 for the year 1934-35. The applicant is the grandmother of the present taluqdar. The names of the guzaradars of the estate were intimated to the Income-tax Department by the taluqdar by a letter dated 26th August 1935. The Income-tax Officer by his letter, dated 2nd September 1935, enquired if the guzaradars, including the applicant, were members of a joint Hindu family with the taluqdar or not, upon which the Raja replied in the negative. Thereupon the Income-tax Officer issued notices calling upon the Rani to furnish returns of her income for the years mentioned above and the Rani in compliance with the notices submitted her returns. The Income-tax Officer accepted the returns and without any further notice to the assessee assessed her on the amounts shown in the returns. Reference No. 2 of 1936 before us refers to the assessment for the year 1933-34 and Reference No. 3 refers to the assessment for the year 1934-35.

2. From the orders of assessment by the Income-tax Officer the assessee appealed to the Assistant Commissioner of Income-tax under Section 30, Income-tax Act, denying her liability to be assessed under the Income-tax Act. Both the appeals were heard together and dismissed by the same judgment. The only question argued in appeal was whether the assessee was a member of the joint Hindu family or not. The assessee then applied to the Commissioner of Income-tax, Central and United Provinces, under Section 66(2), Income-tax Act, alleging that the question of law as to whether the assessee (a Hindu widow) would be deemed to be a member of a Hindu undivided family was not free from difficulty and was of considerable importance and prayed for a statement of the case and for reference of the said question of law to the Chief Court of Oudh for its decision. The two applications before the Commissioner of Income-tax were numbered as Reference Case No. 19 and Reference Case No. 20 and were heard together. The learned Commissioner rejected the applications on the view that no reference in the circumstances of the case could be made to the Chief Court. The sole ground for decision by the learned Commissioner was that the assessee had not raised the question sought to be referred to the Chief Court before the Income-tax Officer and as such no appeal against the order of assessment was maintainable before the Assistant Commissioner. The proceedings of appeal in his opinion before the Assistant Commissioner were ultra vires and could not be regarded in law as proceedings under Section 31 of the Act and could not form the foundation of a reference to the Chief Court.

3. At the hearing of the applications in this Court a preliminary objection was taken by the learned Counsel representing the Income-tax Department to the effect that the applications were not maintainable on the ground, that as the assessment had not been objected to before the Income-tax Officer, no appeal was maintainable before the Assistant Commissioner, and as such there were no proceedings under Section 31 of the Act. The preliminary objection raised by the learned Counsel is in fact no preliminary objection but is just the question which is involved for decision on merits in the applications. We have heard the learned Counsel for both the parties and come to the conclusion that the view of law taken by the learned Commissioner is not correct. There is nothing in the Income-tax Act to justify the view that it is incumbent upon the assessee to deny his liability to assessment before the Income-tax Officer to invest him with a right