Gopalan Nambiyar, C.J.
1. This reference is at the instance of the assessee by the Kerala Agrl. I.T. Appellate Tribunal under section 60 of the Agrl. I.T. Act. The question of law referred is:
' Whether, on the facts and in the circumstances of the case, the Tribunal is justified in confirming the inclusion of the income from 2.82 acres of properties purchased in the name of the applicant's wife in 1962, in the assessable income of the applicant '
2. The appellant is an agriculturist at Cherai, and an assessee on the file of the Addl. Agrl. ITO, Alwaye. For the year 1968-69, he filed a return showing a net income of Rs. 2,678. No accounts were maintained. According to the return, the extent of the properties in his possession was only 2.68 1/2 acres of cocoanut garden. There was an extent of 2'82 acres of cocoanut garden in the name of his wife, the income of which was also assessed as his income under section 9(2) of the Agrl. I.T. Act, in the prior years. So, the assessing officer rejected the return, and after issuing a pre-assess ment notice and considering the objections filed by the appellant, estimated the net income as Rs. 9,503 including the income from the 282 acres of cocoanut garden in the name of the wife, also as the income of the assessee. On appeal by the assessee, the AAC, Ernakulam, concurred with the Agrl. ITO On further appeal, the Tribunal again concurred with this view. The Tribunal referred the question of law.
3. The assessee's case is that the property had been purchased by the wife in her own name and the assessee had nothing to do with those properties. For the years 1964-65 and 1965-66, the same question regarding the assessability of the income from this 282 acres of land arose for consideration before the Tribunal in I.T.A. Nos. 211 and 212 of 1970. The Tribunal in its present order has extracted copiously from the judgment in the prior proceedings. The substance of the extract is that on the earlier occasion it was contended before the Tribunal that the burden of proof of showing that the assessee had transferred any amount to the wife for the purchase of the property was on the department. The Tribunal did not accept this contention. The Tribunal, on the earlier occasion, took the view that though the assessee had been able to trace the source of payment of consideration, he had not been able to prove that the sum of Rs. 9,000 actually belonged to the wife and that, in the absence of such proof, the conclusion was justified that the income from 2.82 acres of garden land had to be taken into account as the income of the assessee, by applying the provisions of Section 9, Sub-section (2), of the Agrl. I.T. Act. That section reads:
' 9. (2) In computing the total agricultural income of any individual for the purpose of assessment there shall be included-
(a) so much of the agricultural income of a wife or minor child of such individual as arises directly or indirectly-
(i) from the membership of the wife in a firm of which her husband is a partner;
(ii) from the admission of the minor to the benefits of partnership in a firm of which such individual is a partner;...... '
4. Counsel for the assessee contended that the Tribunal was wrong in relying upon the prior assessment orders and in basing its conclusion on those orders. It was argued that the prior assessment orders could not be res judicata, and as authority for the proposition our attention was drawn to the decision of the Supreme Court in New Jehangir Vakil Mills Co. Ltd. v. CIT : 49ITR137(SC) . Counsel also cited the passage at page 852 of vol. 1 of Kanga to the effect that a decision based on burden of proof is no decision at all, which can be regarded as binding and valid. It appears to us that the contention of counsel for the assessee proceeds on a misconception. The Tribunal has not found that the prior decision of the Agrl. I.T. Appellate Tribunal was res judicata. It noticed the prior decision to the effect that the amount was transferred to the wife by the assessee, and recorded on the present occasion, that the Tribunal saw no reason to take a different view. This, we think, the Tribunal was entitled to find, irrespective of whether the prior decision of the Tribunal was based on the question of burden of proof or on an assessment of the evidentiary materials placed before it. We are unable to hold, as a proposition of law, that an earlier assessment based on burden of proof has got to be ignored for all purposes whatsoever, as a finding based on no material and on no evidence whatsoever. When pressed, counsel for the assessee himself found it difficult, and if not impossible, to take up this extreme stand. As we read the order of the Tribunal, it has only relied upon the previous order of the Tribunal as a piece of evidence on which to rest its present conclusion. As counsel for the revenue pointed out, this it was entitled to do. The Supreme Court itself in the decision in M. M. Ipoh v. CIT : 67ITR106(SC) has pointed out that although the prior assessment proceedings would not constitute res judicata they are cogent piece of evidence in subsequent years in respect of matters on which the Tribunal has got to form an opinion or conclusion. It is only from that point of view that the Tribunal in the present case has relied upon the prior assessment proceedings. In the circumstances, it cannot be said that the Tribunal was not justified in coming to the conclusion that it did. We answer the question referred, in the affirmative, that is, in favour of the revenue and against the assessee. There will be no order as to costs.
5. A copy of this judgment, under the seal of the court and the signature of the Registrar, will be communicated to the Tribunal, as required by law.