Jagdish Sahai, J. - (1.) THIS special appeal is directed against the judgment of S. C. Manchanda-J. dated August 21, 1964, [1965] 58 I.T.R. 626.
(2.) M/s. S. B. Singar Singh and Sons (hereinafter referred to as "the assessee") were assessed to income-tax and excess profits tax for the accounting periods ending with March 31, 1945, and March 31, 1946, by means of the orders dated 26th August, 1949. The assessments were both under the Indian Income-tax Act and the Excess Profits Tax Act. In the excess profits tax appeals, the assessee took a specific ground before the Appellate Assistant Commissioner regarding adjustment of standard profits. The Appellate Assistant Commissioner dismissed the appeals by one judgment. Thereupon the assessee filed second appeals before the Income-tax Appellate Tribunal and, inter alia, took a definite plea with regard to the adjustment of standard profits. The two appeals in respect of the excess profits tax assessment and the other two in respect of income-tax relating to the periods mentioned above were heard together and disposed of by one common judgment by the Tribunal. The assessee filed review applications in respect of the excess profits tax appeals on the ground that the Tribunal had not gone inio the question of adjustment of standard profits. These applications were dismissed by the Tribunal. Thereafter, the assessee filed Writ Petition No. 2810 of 1964' in this court. The main question involved in the writ petition was whether the Tribunal had jurisdiction to rehear the matter in view of the circumstance that, even though admittedly the assessee was entitled to the decision of the question regarding adjustment of the standard profits, the same had not been gone into by the Tribunal. Manchanda J. allowed the writ petition and set aside the order of the Tribunal dated 9th July, 1956, by which it had dismissed the review application made by the assessee. Mr. Gopal Behari, who has appeared for the income-tax department, has made, the following two submissions : 1. That Section 35 of Act 11 of 1922 was applicable to the proceedings under the Excess Profits Tax Act and inasmuch as that provision provides for a period of four years' limitation and the applications by the assessee were made after the expiry of that period, the applications were not competent. 2. That the learned single judge committed an error of law in holding that, in the circumstances of the present case, the review applications before the Tribunal were competent.
(3.) ADMITTEDLY, the following specific ground of appeal was taken in the two memorandum of appeals that were filed in respect of the excess profits tax assessments, [1965] 58 I.T.R. 626, 628 : "Because the learned Excess Profits Tax Officer and the Appellate Assistant Commissioner have erred in not allowing to the assessee proper standard profits in accordance with the standard period subject to the adjustment on account of the increase and decrease of capital in the relevant chargeable accounting period, the view of the Income-tax Officer is wrong and untenable. The appellant was always prepared to file his computation of average capital. The lower court is not justified in refusing to give the benefit to the assessee on this account." It is not disputed even by Mr. Gopal Behari that the aforesaid ground has substance and had to be considered by the Tribunal. It is also a matter of admission that the Income-tax Officer was required to determine proper standard profits in accordance with the standard period. Clearly the Tribunal ignored this aspect of the matter and disposed of the appeals before itself by saying : "The excess profits tax appeals being consequential and the grounds in both these appeals being common, they are disposed of by this common order." ;