M.C. Chagla, C.J. - (1.)THE facts leading up to this reference may be briefly stated. THE assesses are a registered partnership firm carrying on business in the name of Kikabhoy Chandabhoy. Kikabhoy Chandabhoy himself was the sole proprietor of this firm and then there were changes in the constitution of that firm. He took Bai Fatima Bai, his daughter, as a partner in samvat year 1994 (1938-39) under an instrument dated October 13, 1938. Kikabhoy died on March 22, 1942. By an instrument of partnership dated March 29, 1942, a new partnership was brought into existence and that partnership was to commence business from April 1, 1942. That partnership consisted of the widow of Kikabhoy, his daughter and an outsider by the name of Abbasbhai Mohamedali. This partnership was dissolved on October 30; 1942.
(2.)IN the assessment of this firm, for the year 1942-43 a claim was made that the firm was entitled to relief both with regard to income-tax and super-tax under Section 25(3) and Section 25(4) of the Act. The contention was that there was either a discontinuance or a succession within the meaning of either of these two Sub-sections on April 1, 1942, on the death of Kikabhoy or a new partnership coming into existence on that date. The INcome-tax Officer who made the assessment rejected the contention of the assesses and refused to grant any relief either under Section 25(3) or Section 25(4) of the Act.
Then the matter came before the Income-tax Tribunal. The Income-tax Tribunal took a different view from the view taken by the Income-tax Officer and they held that there was a succession to the business within the meaning of Section 25(4) on April 1, 1942 and the assesses were entitled to relief under that section and no tax was payable within the meaning of Section 25(4) of the Act. Having come to that decision, the Income-tax Appellate Tribunal sent back the assessment to the Income-tax Officer with a direction that the assessment was to be made conformably to the finding arrived at by the Tribunal and the directions contained in Section 25(4) of the Act. The Income-tax Officer gave relief to the assesses with regard to the income-tax under Section 25(4) but refused to grant any relief with regard to super-tax, and the contention of the assesses both before the Tribunal and before us is that they were entitled to relief not only with regard to income-tax but also with regard to super-tax. The Tribunal rejected the contention of the assesses, and thereupon & reference has been made to us under Section 66(1,) of the Indian Income-tax Act; and two questions have been framed by the Tribunal for our consideration.

Now the first contention of Sir Jamshedji is that in view of the decision of the Tribunal that the assesses are entitled to relief under Section 25(4), it was not open to the Income-tax Officer not to give relief to the assesses with regard to super-tax also. It is argued that the effect of the Tribunal s decision was that no tax was payable in respect of the income, profits and gains of the particular broken period, namely, between October 20, 1941, the end of the previous year, and the date of succession and, therefore, "no tax" included not only income-tax but also super-tax.

(3.)NOW, in my opinion, it is impossible to read the decision of the Tribunal as amounting to a finding that no super-tax was payable in respect of the broken period contemplated by Section 25(4) of the Act. The contention of the assesses before the Income-tax Officer was that they were entitled to relief both with regard to income-tax and super-tax. The Income-tax Officer came to the conclusion that the contention of the assesses was not well-founded and they were not entitled to any relief. All that the Income-tax Tribunal held in appeal was that the contention of the assesses was well-founded, that there was a succession and that they were entitled to relief under Section 25(4) of the Act.
The question whether the assesses were entitled to relief with regard to super-tax in contradistinction to income-tax was never argued, never considered and never decided by the Tribunal. Obviously the Tribunal could not consider this question, because in order to decide that a question of fact had to be found which would enable the Tribunal to come to a conclusion whether the assesses was entitled to relief in respect of super-tax or not, because Section 25(4) contains a proviso which is material with regard to relief to super-tax and that proviso does not grant relief as to super-tax except where the income, profits and gains of a profession or vocation were assessed to super-tax for the first time either for the year beginning on April 1, 1920, or for the year beginning on April 1, 1921. Therefore it is only if the assesses paid super-tax for the first time for the year beginning from April 1, 1920, or April 1, 1921, that they are entitled to relief under Section 25(4); and in order to determine whether the proviso applied or did not apply, it was necessary to determine when the assesses paid super-tax for the first time and, therefore, when the matter was remanded back to the Income-tax Officer by the Tribunal, the Income-tax Officer went into the question on the facts before him and held that the assesses were not entitled to relief as regards super-tax as they had paid super-tax anterior to the period mentioned in the proviso. Now Sir Jamshedji says that as the Tribunal has not mentioned the proviso to Section 25(4) in its judgment, we must hold that the Tribunal was only considering Section 25(4); and as the expression used by them is that no tax was payable in respect of the particular broken period, they meant by "no tax" not only income-tax but super-tax. We cannot attribute to the Tribunal a complete ignorance of the proviso to Section 25(4). When they stated that no tax was payable under Section 25(4), they meant Section 25(4) with all the qualifications and provisos and exceptions contained in that sub-clause; and that is made perfectly clear because there is a direction, as I have pointed out earlier, to the Income-tax Office to assess the income in conformity with the directions contained in Section 25(4) of the Act, and one of the most clear and specific directions is contained in Section 25(4), proviso (a), and that proviso is that the assesses are liable to super-tax if they paid super-tax prior to April 1, 1920. Therefore, in our opinion, there is no substance in the contention urged by Sir Jamshedji that it was not competent to the Income-tax Officer to assess the assesses to super-tax in view of the order of the Tribunal remanding this matter back to the Income-tax Officer.