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5. In March, 1962, the ITO, D-1 Ward, in-charge of the assessee's case, reopened his assessments for 1953-54 under s. 34(1)(a) and for the assessment year 1957-58 under s. 34(1)(b) of the Act on the ground that on a proper construction of the provisions in the trust deed the settlement was revocable and consequently the trust income was liable to be assessed in the settlor's hand sunder s. 16(1)(c). In the reference, we are only concerned with the assessment for 1957-58, reopened under s. 34(1)(b). This is because the Tribunal has concluded that the assessee had not been guilty of any failure or omission within the meaning of s. 34(1)(a) and there is no reference before us pertaining to this finding of the Tribunal.

9. Joshi submitted that propositions (2) and (4) above would be applicable to the facts of the case before us and would justify the reopening of the assessments for the year 1957-58. It was submitted that there was no warrant for the Tribunal observing that there was alleged misconstruction of the trust deed which was the ground for reopening, inasmuch as there was no material to show that the relevant provisions of the trust deed had been originally construed in the year 1957-58 for the purpose of determining the question of the revocability of the trust within the meaning of the same indicated by s. 16 of the I.T. Act.

13. If on the facts before us it is possible to take the view that in 1957-58 the ITO had clearly adopted one course or made certain findings on the basis of which the trust was separately assessed or had even done anything to suggest that separate assessment of the trust had been considered and approved by him, then perhaps the learned by this court in Dolwani's case [1978] 111 ITR 650 (Bom) must be the very conclusions to be arrived at in this case and that the ultimate decision of the Tribunal would be required to be confirmed. We are, however, afraid that the facts as found by the Tribunal before us are considerably different from the record as was available to this court in Dolwani's case [1978] 111 ITR 650 (Bom). It is clear from the assessment order for the assessment of 1957-58 that this aspect of the matter was not at all present to the mind of Sheth. Sheth was also not concerned with the assessment of the trust, and the position in Dolwani's case [1978] 111 ITR 650 (Bom) was totally different where the very same officer, Bhagwat, was handling both the assessments of the individual as well as that of the firm. Further, it appears to us that there is no material to show that even earlier than 1957-58, a definite opinion has been taken either by any other officer D-Ward or even by the officers of A-Ward on the question of revocability or otherwise of the trust.