MODY, ACTG.C.J. - (1.)THIS is a reference under section 66(1) of the Indian Income -tax Act, 1922.
(2.)ONE Aboobaker Abdul Rehman was the owner of a cinema theatre in Bombay, known as the Imperial Cinema, and several other immovable properties. He also carried on the business of exhibiting pictures in the Imperial Cinema. Under an indenture dated the 22nd October, 1946, Aboobaker and his three sons, Ebrahim (hereinafter referred to as 'the assessee'), Hoosein and Alimahomed, formed a partnership to carry on that business of exhibiting picture in the Imperial Cinema. Aboobaker gave to this partnership firm a monthly tenancy of the building of the Imperial Cinema for carrying on that business.
In September, 1947, Hoosein and Alimahomed migrated to and settled in Pakistan. Some inquires were made by the Deputy Custodian of Evacuee Property, Bombay, in respect of Hoosein and Alimahomed, and, thereafter, on the 4th of August, 1949, Aboobaker expelled Hoosein and Alimahomed from the partnership firm in pursuance of the provision contained clause 13 of the partnership dee. The business was thereafter continued by Aboobaker and the assessee as the remaining partners. The shares of Hoosein and Alimahomed were thereafter declared to be evacuee properties.

(3.)IN December, 1949, proceedings under the Administration of Evacuee Property Act, 1950 (hereinafter referred to as 'the said Act'), were started against Aboobaker. The Additional Custodian of Evacuee Property made on order dated the 2nd February, 1950, holding that Aboobaker was not an evacuee, but was an intending evacuee. Against that order an appeal, as also a revision petition, were filed before the Custodian -General of Evacuee Property. In the meantime. Aboobaker died on 14th May, 1950. Aboobaker left him surviving his said three sons and a daughter, Hawabai. The shares of the two sons in the partnership business had vested in the Custodian of Evacuee Property as stated earlier, each of them having a 2/7th share. The assessee became entitled to a 2/7th share and Hawabai to the remaining 1/7th share. On 15th May, 1950, the Custodian -General dismissed the revision petition but directed that further inquiries be made in the matter of the said appeal. Pending that appeal the assessee filed a writ petition in the High Court of East Punjab relating to the subject -matter of the said appeal. The decision of the High Court in that writ petition was taken to the Supreme Court. Pending the appeal to the Supreme Court, the Custodian -General passed an order, dated the 30th July, 1951, declaring Aboobaker an evacuee. The Supreme Court, however, in the matter of the said appeal pending before it, quashed this order by its judgment and order, dated the 10th April, 1953. The proceedings referred to in this paragraph, for the sake of convenience, will hereafter be referred to as 'the first set of proceedings.'