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Against the order passed by the Income Tax Officer the assessee appealed to the Appellate Assistant Commissioner who by his order dated October 10, 1947 observed :

"......that partial partition in respect of movable property of Gurbux Rai was effected on a date somewhere near Asadh Samvat 2000, from which date Farrukhabad was conducted by a separate firm consisting of Harbux Rai, Mst. Chameli and Gopaldas".

Pursuant to this order the Income-tax Officer modified the assessment with respect to the Income-tax assessment of the assessee for the assessment years 1944-45 and 1945-46. The Excess Profits Tax Officer however started proceedings under s. 10-A by notice dated February 6, 1951 calling upon the assessee to show cause why appropriate adjustments should not be made in the assessment, and passed orders in that behalf for both the chargeable accounting periods holding that the main purpose of the partial partition of the family business of Gurbux Rai was avoidance of excess profits tax liability. By order dated February 21, 1951 passed under s. 15 of the Excess Profits Tax Act the Excess Profits Tax Officer modified the original excess profits tax assessment. In the revised assessment in pursuance of orders under s. 10-A he included the income of the branch shop at Farrukhabad in the total income of the assessee for purposes of excess profits-tax assessment. The assessee appealed against the order of additional assessment contending that the Excess Profits Tax Officer was not competent to reopen the case under s. 15 as he had no definite information coming into his possession to enable him to discover that the profits of the chargeable accounting period had escaped assessment. The assessee contended that all the materials in the case were before the Excess Profits Tax Officer at the time of his original assessment and no new information came into his possession thereafter. The assessee also contended that the Excess Profits Tax Officer was not competent to pass any order under s. 10-A merely to make an adjustment in the revised assessment under s. 15. The Income-tax Appellate Tribunal held that the Excess Profits Tax Officer had received definite information regarding the state of the law in pursuance of the appellate order of the Appellate Assistant Commissioner who had held that the family of Gurbux Rai was partially partitioned. The Tribunal also held that the Excess Profits Tax Officer was competent to pass an order under s. 10-A, of the Excess Profits Tax Act.

3 6 0 The Tribunal thereafter referred the following questions to the High Court of Allahabad under s. 21 of the Excess Profits Act read with s. 66 (1) of the Income-tax Act, 1922 :

"(1) Whether on the facts and in the circumstances of this case there was any definite information within the meaning of s.

15 by virtue of which the Excess Pro fits Tax Officer was competent to reopen the excess profits tax assessments ?

(2) Whether in the circumstances of this case, the Excess Profits Tax Officer was competent to apply the provisions of s. 10-A and make necessary adjustments,in pursuance thereto in the revised assessment under s. 15 ?"

The High Court of Allahabad held that since the Excess Profits 'Tax Officer purported to reopen the assessment under s. 15 of the Excess Profits Tax Act "only because of the order of-the Appellate Assistant Commissioner of Income- tax holding that the Farrukhabad business was no longer the business of the assessee and that the family of Gurbux Rai had partitioned its movable property, all of which proceeded upon material which was already initially before the Excess Profits Tax Officer and to which he had applied his mind when he made the original assessment, it was not a case where the Excess Profits Tax Officer can be said to have discovered", in consequence of definite information which had come into his possession, that profits chargeable to excess profits tax had escaped assessment. The High Court accordingly answered the first question in the negative. The High Court then observed that if the Excess Profits Tax Officer was not competent to take proceedings under s. 15 of the Excess Profits Tax Act, it was not open to him to apply the provisions of s. 10 in the proceedings up= reopening the assessment under s. 15, for, in the view of the High Court an order under s. 10-A may be passed only where the Excess Profits Tax Officer is seized of jurisdiction in a pending assessment proceeding. As the proceedings initiated by the Excess Profits Tax Officer under s. 15 were void,: he had no power to make an order under s. 10-A of the Act. The High Court accordingly answered the second question also in the negative.

Section 10-A of the Excess Profits Tax Act, insofar as it is relevant, provides :

"(1) Where the Excess Profits Tax Officer is of opinion that the main purpose for which any transaction was effected was the avoidance or reduction of liability to excess profits tax, he may, make such adjustments as respects liability to excess profits tax as he considers appropriate so as to counter-

act the avoidance or reduction of liability to excess profits tax which would otherwise be effected by the transaction Section 15, insofar as it is relevant provides "If in consequence of definite information which has come into his possession, the Excess Profits Tax Officer discovers that profits of any chargeable accounting period chargeable to excess profits tax have escaped assessment, or have been under-assessed, or have been the subject of excessive relief, he may at any time serve on the person liable to such tax a notice containing all or any of the requirements which may be included in a notice under section 13, and may proceed to assess or reassess the amount of such profits liable to excess profits tax The High Court in the judgment under appeal held that pro- ceeding under s. 10-A may be commenced only if there be a valid proceeding under the Excess Profits Tax which was pending for assessment or reassessment of excess profits which had escaped assessment and not otherwise. In our opinion the High Court was right in so holding. S. 10-A does not contemplate an independent proceeding. Section 10- A merely confers power upon the Excess Profits Tax Officer to make adjustments with respect to liability to excess profits tax : it confers power which the Excess Profits Tax Officer may exercise in the course of the ,original assessment or in the course of re-assessment. It is necessary therefore to determine whether an order was made under s. 10-A in a pending proceeding for assessment of Excess Profits tax. But the question whether there was a pending proceeding under s. 15 in the course of which an order under s. 10-A could be made cannot be ascertained on the materials available before us. The High Court had decided that the proceeding under S. 15 was not valid, because there was no definite information with the Excess Profits Tax Officer and on that account proceeding under s. 10-A was not valid. It has been assumed that there was a pending proceeding under s. 15 in the course of which an order under s. 10-A was made. Expression of that opinion of the High Court is challenged. We are of the view that in the interests of justice, it is necessary that a supple- mentary statement of the case should be called for on the question whether there was any proceeding pending under s.