- (1.) For the assessment year 1946-47 the appellant, Manji Dana, filed his return of income in the status of an individual, but the Income-tax Officer assessed him in the status of a Hindu undivided family. An appeal against the order of assessment was dismissed. The Income-tax Officer thereafter having reason to believe that certain income had escaped assessment initiated action for assessment and served a notice upon Manji Dana under section 34(1)(a) on 25.03.1955, for assessment of escaped income. In response to the notice, Manji Dana filed his return in the status of an individual, and the order of assessment was completed in the status of an individual on 15.03.1956. In appeal the order passed by the Income-tax Officer was confirmed by the Appellate Assistant Commissioner. Against that order an appeal was preferred to the Appellate tribunal. Neither before the Appellate Assistant Commissioner, nor before the tribunal did Manji Dana set up a ground that since the original order of assessment was made in the status of a Hindu undivided family, it was not competent to the Income-tax Officer, pursuant to a notice under section 34(1)(a) to assess him in the status of an individual. But in the course of the argument before the tribunal, counsel for Manji Dana contended that the order of assessment pursuant to a notice under section 34(1)(a) made in the status of an individual was invalid, because the earlier order of assessment was made against Manji Dana in the status of a Hindu undivided family. The tribunal declined to allow that argument to be raised and dismissed the appeal.
(2.) On a direction by the High court of Judicature at Bombay under section 66(2) of the Indian Income-tax Act, 1922, the tribunal drew up a statement of the case and referred the following question of law to the High court: " Whether the tribunal erred in law in not allowing the petitioner to raise and argue the following question, that is to say, ' Whether in view of the fact that the original assessment sought to be reopened was made on the petitioner's Hindu undivided family, the reassessment purported to have been made on the petitioner as an individual is bad and void in law ' " The High court recorded an answer in the negative on that question. With special leave, Manji Dana has appealed to this court.
(3.) In refusing to allow a new point which was sought to be raised for the first time-a point which was not raised before the Income-tax Officer nor before the Appellate Assistant Commissioner, nor in the grounds of appeal -the tribunal relied upon rule 12 of the Appellate tribunal Rules, 1946, made in exercise of Ss. (8) of section 5A of the Indian Income-tax Act, 1922, which provided that : " The appellant shall not, except by leave of the tribunal, urge or be heard in support of any ground not set forth in the memorandum of appeal ; but the tribunal, in deciding the appeal, shall not be confined to the grounds set forth in the memorandum of appeal or taken by leave of the tribunal under this rule : Provided. .. . ";