HARRIES, J. - (1.) THIS is a reference made by the Tribunal, Calcutta Bench, under S. 66 of the Indian IT Act. The question propounded is :-"Whether in the facts and circumstances of this case relief under S. 25 (3) was properly allowed by the Tribunal."
(2.) TO appreciate the point raised it will be necessary shortly to set out the facts. The assessee is and was a well known member of the Bar and an Advocate practising on the Original Side of the Calcutta High Court. It is common ground that he was assessed to income-tax under the Act of 1918. On 11th Dec., 1941, he was arrested at the instance of Government and was kept in detention until 14th Sept., 1945, when he was released. During that period of course he was unable to carry on his practice as a Barrister and an Advocate and on his behalf it was said that Mr. Bose had given up all idea of practising in the future or, in short, had discontinued his practice. It is accepted by the Tribunal that Mr. Bose dismissed his clerk and also gave up his Chambers which were acquired by him for his professional work. On the other hand, the taxing authorities contended that he had not discontinued his practice, but had only suspended it temporarily during this period of imprisonment. They urged that Mr. Bose has now resumed practice which went to show he had never intended to discontinue and that the period of incarceration merely operated to suspend his professional work. When the matter came before the Tribunal the IT authorities sought to raise an entirely new point. It was suggested that Mr. Bose had previously been imprisoned and had been compelled to give up his practice. Mr. Bose, it was said, had applied for and obtained relief under S. 25(3) of the Act on the ground that be had discontinued practice as a result of this earlier period of imprisonment. That period of imprisonment, it was suggested, was from 4th Feb., 1932, to July, 1935.
(3.) NO reference had been made to this point at all by the ITO and it was not raised before the AAC. As I have said it was first mentioned to the Tribunal and that Tribunal of course had no facts before it upon which it could hold whether relief had been given to Mr. Bose under S. 25(3) of the Indian IT Act in respect of this earlier period of imprisonment.;