B. C. VERMA J. - This order will also govern the disposal of Miscellaneous Civil Case No. 652 of 1974.
These are applications under s. 256(2) of the I.T. Act, 1961, for the assessment years 1967-68 and 1968-69. The assessee is employed in Government service as an Assistant Surgeon. At the relevant time, he was also a partner in a firm styled as M/s. Motilal Dhannial Tapa, Mandal. In the return of his income filed under s. 139 of the Act, he included the share income of the partnership firm. The assessment was completed. Subsequently, the ITO issued a notice under s. 148 of the Act to the applicant alleging that the income from his procession as a medical practitioner was thus underassessed. The applicant filed his return showing his income from medical practice. In this subsequent return filed by him in response to the notice under s. 148, he did not include the share income from the partnership firm explaining that he was a partner of the firm as a member of the Hindu joint family and not as individual and, therefore, the share income was the income of the Hindu joint family and not his individual income. This contention was not accepted by the ITO. The applicant filed an appeal before the AAC, but his contention was not accepted by him also. In further appeal before the Tribunal, the same contention was reiterated. The Tribunal by its order dated October 30, 1973, (annex. F) rejected the applicants contention holding that since the share income from the partnership firm was included that since the share income from the partnership firm was included in the original return and was not objected to at the time of the original assessment, the same could not be challenged in proceedings under s. 147 of the Act. The Tribunal also observed that the assessment had become conclusive and final. The Tribunal relied upon a decision of the Bombay High Court in CIT v. A. D. Shroff  31 ITR 284, to total that any matter which has not been agitated in the original assessment cannot be agitated at the time of reassessment.
Learned counsel for the applicant referred us to a decision of the Supreme Court in CST v. H. M. Esufali H. M. Abdulali : 90ITR271(SC) , where it was observed that what is true of the assessment must also be true of reassessment because reassessment is nothing, but a fresh assessment. The Supreme Court was dealing with reassessment under s. 19 of the M.P. General Sales Tax Act. It was observed as follows :
'When reassessment is made under section 19, the former assessment is completely reopened and in its place a fresh assessment is made. While reassessing a dealer, the assessing authority does not merely assess him on the escaped turnover but it assesses him on his total estimated turnover.'
In dealing with proceedings for reassessment under s. 17(1) of the W.T. Act, 1957, a Full Bench of the Andhra Pradesh High Court in CWT v. Subakaran Gangabhishan : 121ITR69(AP) , held that a reassessment proceeding wipes out the items that escaped assessment but also in respect of the entire assessment for the year. According to the Andhra Pradesh High Court, in any reassessment proceedings, the original assessment is totally wiped out and a de novo and fresh assessment takes place. The learned counsel also added that under s. 147 of the Act, what is to be assessed or reassessed is income chargeable to tax if it has escaped assessment for any assessment year.
In our opinion, having regard to the facts of the case, the following question of law arises out of the Tribunals order :
'Whether, on the facts and in the circumstances of the case, it was open to the assessee to agitate in reassessment proceedings under section 147 of the Income-tax Act that the share income from M/s. Motilal Dhannilal Tapa was the income of the joint family and was wrongly included as his individual income in the original assessment ?'
The applications are allowed. The Tribunal is directed to state the case and refer the aforesaid question of law for the decision of this court. There shall be no orders as to costs in each case.