TAMBE, J. - (1.) THIS is a reference under S. 66(1) of the Indian IT Act and four questions have been referred to us. The first two questions relate to the asst. year 1947 -48, and the third and the fourth questions relate to the asst. year 1950 -51. The first question now has remained only academic and the answer to the second question is concluded by the decision of the Supreme Court. We will deal with each question separately and consider the facts relevant to that question while dealing with these questions.
(2.) THE assessee before us is Seth Mathuradas Bulakhidas Mohta, Hinganghat. He had been assessed in the status of an HUF in the asst. year 1947 -48 and has been assessed in the status of individual in the asst. year 1950 -51. The first question that has been referred is in the following terms : "Whether, in the facts and circumstances of this case, the proceedings under S. 34 were valid ?" The facts relevant to this question in brief are : In the asst. year 1944 -45 Seth Mathuradas Mohta filed his return in the status of an individual, and since then he had been filing his return every year in the status of individual all through. His claim was that there was a partition among the members of the HUF on 16th Oct., 1944, and therefore from the year 1944 -45 he was liable to be assessed as an individual. The ITO did not accept this contention of Seth Mathuradas and he was being assessed in the status of an HUF. In the asst. year 1947 -48 also Seth Mathuradas had been assessed in the status of HUF. There had been an appeal by Seth Mathuradas against the decision of the ITO. The ITO, therefore, thought it proper to take precautionary measure by having the precautionary assessment made against Seth Mathuradas in his capacity as individual also. The ITO, therefore, issued a notice under S. 34 for that purpose, and ultimately an assessment against him in his capacity as an individual also has been made for the same income for which there had been an order of assessment in his capacity of an HUF. The matter has ultimately been decided by the Supreme Court, and it appears that as a result of the Supreme Court decision Seth Mathuradas is liable to be assessed in the status of HUF till the asst. year 1947 -48. We are here concerned with the asst. year 1947 - 48. This being the final result flowing from the decision of their Lordships of the Supreme Court, the ITO has now cancelled the assessment of Seth Mathuradas in his individual capacity. Mr. Joshi for the Department has stated these facts before us in the course of proceedings of this reference. That being the position, and there being now no outstanding assessment against Seth Mathuradas in his capacity as an individual, the question whether the notice issued under S. 34 was valid or otherwise has become only academic. In the circumstances it is no more necessary to answer question No. 1.
(3.) THE second question is in the following terms : "Whether the AAC, while dealing with the assessee's appeal for the asst. year 1947 -48, was competent to give any direction in relation to assessment of capital gains and profits arising out of the sale of the textile mills for the year 1948 -49 ?" ;