SATISH CHANDRA J. - The Income-tax Appellate Tribunal this referred the following question of law for the opinion of this court at the instance of the Commissioner of Income-tax :
'Whether, on the facts and in the circumstances of the case, the excess profits tax assessment on the Hindu undivided family for the corresponding chargeable period ending October 22, 1941, was rightly cancelled ?'
The chargeable accounting period is from October 25, 1940, to October 22, 1941. A notice under section 13(1) of the Excess Profits Tax Act, 1940, was served on the assessee on 8th June, 1942, Sri Jai Narain, who was the karta of the Hindu undivided family, filed a return on October 27, 1942. A regular assessment was made on 9th September, 1947. It was, however, set aside on appeal and the matter was remanded. After remand a fresh assessment was made which again was set aside in appeal on the ground that the Hindu undivided family, which was the assessee, had disruputed on 6th September, 1943, prior to the passing of the assessment order and since the assessable entity was not in existence on the date of passing of the assessment order the same was invalid. This view was affirmed by the Tribunal on further appeal. The Tribunal relied upon a decision of this court in Commissioner of Income-tax v. Neekelal Jai Narain. There it was held that the Excess Profits Tax Act contains no provisions for the imposition of excess profits tax in regard to a Hindu undivided family which has disrupted after the issue of notice but before the assessment order has been passed.
In Income-tax Officer v. Ram Prasad the Supreme Court has specifically approved the decision of this court in Neekelal Jainarain. In this context the question mentioned above is answered in the affirmative, in favour of the assessee and against the department.
The Tribunal has along with the same statement of case referred the following question at the instance of the assessee.
'Whether, on the facts and in the circumstance of the case, the Tribunal was justified in entertaining the department appeal ?'
On behalf of the assessee it was argued before the Tribunal that the appeal filed by the department was barred by limitation and the Tribunal had not power to condone the delay. The Tribunal held that the appeal was beyond time but it had the power to condon the delay. On a consideration of the facts of the case it condoned the delay in filing the appeal. When this case was called for argument no one appeared on behalf of the assessee. Since the assessees interest would not be affected in any manner if the second question is returned unanswered, we consider it a futile exercise of jurisdiction to give an answer to question No. 2 without the assistance of the assessees counsel. We leave this question unanswered.
In the circumstances, we make no order as to costs. The fee of the learned counsel is, however, assessed at Rs. 200. Let the papers be returned to the Tribunal with the above opinion and answer.