S.B Capoor, J.:— This is a reference under sub-section (2) of section 66 of the Patiala Income-tax Act, 2001 (No. 8 of 11), hereinafter referred to as the Act, by the Commissioner of Income Patiala (who under the Act discharges the same functions as the Income-tax Appellate Tribunal under the Indian Income-tax Act, 1922), he instance of the assessee, S.S Atwal, Legal representative, for and behalf of the late Sardar Buta Singh.

2. The reference arose out of the appellate order dated the 21st of August 1961 of the Commissioner of Income-tax, Patiala, made under section 31 of the Act. That order forms Annexure ‘F’ to the statement of the case and it was in turn passed in an appeal by the assessee, Sardar Buta Singh, from the order of the Appellate Assistant Commissioner of Income-tax dated the 12th of August, 1949, which forms Annexure ‘E’ to the statement of the case. The Assessment out of which these orders arose was made by the Income tax Officer, Hoshiarpur, in respect of the assessment year Sambvat 2005 (1948–1949) and his order, which forms Annexure ‘D’ to the statement of the case, is dated the 14th of February 1958.

3. It appears from that ordn that it had come to the notice of the predecessor of the Income-tax Officer that the assessee had purchased agricultural lands worth Rs. 475,000/- in Kot Puran Singh, Tehsil Phagwara, District Kapurthala, in May 1947 and that the source of the investment was not disclosed. Proceedings under section 31 of the Act were, therefore, started with the previous approval of the Commissioner of Income-tax, Simla, and the original assessment as made by the order of the Income-tax Officer, Kapurthala (Annexure ‘C’) to the statement of the case, was revised. It was held that the unexplained investments amounted to Rs. 297,689/- and demand notice was issued as well as penalty was levied under section 28(3) read with Section 218(1)(c) and section 28(1)(a) of the Act.

4. Atter stating the facts in the statement of the case, the Commissioner of Income-tax concluded as follows:—

“On these facts I refer the following questions of law which arise out of the Commissioner's order under section 32 for the opinion of their Lordships of the High Court:—

(i) Whether on the facts and in the circumstances of the case action under section 34 was validly taken?

(ii) Whether on the facts and ill the Circumstances of the case service of the notice under section 34 was properly made by affixture?

(iii) Whether on the facts and in the circumstances of the case assessment made under section 34 was barred by time?

5. Now, so far as question (ii) is concerned, the latest decision of the Supreme Court (to await which the Bench had adjourned the case on the 3rd of May 1966) is The Commissioner of Income-tax, Punjab Jammu and Kashmir and Himachal Pradesh v. Daulat Ram Khanna . C.A No. 680 of 1966. Civil Appeal No. 58 of 1966 decided on the March 1957. The learned counsel for the assessee has conceded that April account of the principles laid down by their Lordships of the Supreme Court in, this case, this point no longer survives.

6. As regards question (iii), Mr. D.N Awasthy has pointed out that this is also covered against the assessee by the judgment of the Supreme Court in First Additional Income-tax Officer, Mysore v. H.N.S Iyenger . 44 I.T.R 437. and this matter has also been conceded by the learned counsel for the assessse.

7. The only point on which arguments have been advanced before us is that when the Income-tax Officer, Hoshiarpur, proceeded to revise the assessment under section 34, he did not have any of the ‘primary facts’ before him beyond those which the assessee had already produced at the time of the original assessment. With reference section 34(1) of the Act (which in relevant respects is pari materia with section 34(1)(a) of the Indian Income tax Act, 1942 (No. 11 of 1922), it is pointed out that jurisdiction of the Income-tax Officer to reopen the assessment arises only if:—

(a) an assessee has omitted or failed to make a return of his income for any year; or

(b) he has not disclosed fully and truly all material facts necessary for his assessment for that year.

by reason of which income profits or gains chargeable Income-tax have escaped assessment for that year Now, the first eventuality does not arise in this case, because the return of income had already been furnished by the assessee for the assessment year in question on the basis of which the original assessment was made. But it is intended that the assesses had even at that time made lull disclosure of all material facts necessary for the assessment for that year and in this connection reference is made to the interpretation of section 34(1)(a) of the Income-tax Act, 1922, as contained in the leading case of The Calcutta Discount Company Limited v. Income-tax Officer Companies Distriot I, Calcutta . 41 I.T.R 191. Lordships of the Supreme Court held that the duty of the assessee was to disclose all ‘primary fasts’ and he was not expected to discharge the functions of Income-tax Officer in drawing proper legal inferences from the, primary facts and the further facts inferred by the Income-tax Officer from the ‘primary facts’. It was contended by the learned counsel for the assessee that the Income tax Officer, while making the order (Annexure D to the statement of the case) did not have before him any ‘primary facts’ beyond those which were already disclosed by the assessee when he submitted his return, on the basis if whish the, order of assessment (Annexure ‘C’ to the statement of the case) was made, and while making the in order the Income-tax Officer was merely changing his view on the same facts. This, it was maintained, was not open to him while exercising the limited jurisdiction under section 34, and in that sense the order Annexure ‘D’ to the statement of the case was without jurisdiction and, therefore, illegal.

8. In this argument the reply by Mr. Avasthy is simple. He maintained that the objection which is pressed before this Court does not arise from the statement of the case and hence it could not be gone into by this Court. No doubt (i) in paragraph 10 of the statement of the case is rather widely worded, but according to Mr. Awasthy's submission it must be related to the facts as stated in the contention raised by the assessee before the Commissioner and the facts as stated in the statement of the case. In paragraph 6 of the statement of the case it is stated that in appeal before the Commissioner against the order of the Appellate Assistant Commissioner the following contentions were made before the Commissioner:—

(i) Computing the time from the end of the accounting period the time limit of eight years for completing the assessment had already expired;

(ii) The service of notice by affixture being covered by rule 20 of Order 9 of the Civil Procedure Code a copy of notice under section 34 should have been affixed on the notice-board of the Court Room a shortcoming which invalidated the service in this case;

(iii) The appellant resided at his farm Kot Puran Singh and his brother was living in Buta Singh Building at Phagwara. The notice under section 34 should have, therefore been served at the farm house and not at Phagwara house.

Mr. Awasthy submitted that the questions for the advisory opinion of this Court in paragraph 10 of the statement of the case must necessarily be related to the facts as mentioned in the statement of the case and the contentions raised by the assessee before the Commissioner of Income-tax. Now, co-ordinating paragraph 6 with paragraph 10 it is obvious that on (i) in paragraph 6 the question based is (iii) in paragraph 10 and on the basis of (ii) in paragraph 6 the question referred to this Court is (ii) in paragraph 10. Therefore it would follow that the question referred in (i) in paragraph 10 must be based on the remaining contention, which is (iii) in paragraph. Thus the only matter that would arise be the question of law at (i) would be whether the notice under section 34 should have been served at the farm home of the assessee in Kot Huian Singh and not at the Phagwara house. This contention was repelled by the Commissioner of Income-tax in paragraph 6 of his order (Annexure ‘F’ to the statement of the case) on the basis of the facts of the case and the learned counsel for the assessee has very rightly not canvassed it before us.

9. The facts and circumstances of the case, in the light of which decision has to be arrived at on question of law (i), must necessarily be facts and circumstances adverted to in the statement of the case, and there is nothing in the statement of the case bearing on the question whether the conditions precedent for the exercise of jurisdiction under section 34(1) were satisfied by the Income-tax Officer when he choose to reopen the assessment in this case.

10. Our conclusion, therefore, is that Mr. Awasthy's objection is well sustained, and the only objection which has been pressed before us by the learned counsel for the assessee dots not arise from the statement of the case. It may be that the question of law at (i) in paragraph 10 of the statement of the case is too widely worded, but in such a case it is open to the High Court to refuse to express its advisory opinion. In this connection Commissioner of Income-tax, Madras v. O.R.M.M.S.M.S.V Sevugan . 16 I.T.R 59., which was approved by their Lordships of the Supreme Court in Commissioner of Income-tax, Madras v. M.T.T.A.R.S.A.R Arunachalam Chettiar . 23 I.T.R 180., may be referred to. In this connection the learned counsel for the assessee referred to Bhanji Bagawandds v. Commissioner of Income-tax, Madras . 67 I.T.R 18., in which appears the observation of the Supreme Court that all that section 66(1) of the Income-tax Act requires is that the question of law which is referred to the High court and which the High Court is to decide must be the question which was in issue before the Tribunal, and when the question itself was under issuer there is no farther limitation imposed by the section that the reference should be limited to those assets of the question which had been argued before the Tribunal and it would be an over-refinement of the position to hold that aspect of a question is itself a distinct question for the purpose of section 66(1). This principle is, however, not applicable to the facts of the present case, because, as already stated the matter as to the conditions precedent for the exercise of jurisdiction under section 34(1) was neither before the Commissioner of Income-tax in his order (Annexure ‘F’ to the statement of the case), nor is any fact bearing on this matter even mentioned in the statement of the case. In fact, as would appear from the order (Annexure ‘F’ to the statement of the case) and also from the order of the Appellate Assistant Commissioner (Annexure ‘E’ to the statement of the case) it was not raised on behalf of the assessee at either of these stages. It was submitted by the learned counsel that he had made it one of the grounds of appeal when he went in appeal to the Appellate Assistant Commissioner of Income-tax, but the grounds of appeal are not included in the paper-book and we cannot, therefore, take any notice of that ground.

11. Mr. Awasthy has quite frankly conceded that inasmuch as the Appellate Assistant Commissioner of Income-tax by his order (Annexure ‘E’ to the statement of the case) had set aside the assessment with the observation that the Income-tax Officer was to complete the same according to law as from the return stage and after investigating the various contentions of the appellant, it is still open to the assessee to raise before the Income-tax Officer the question as to the existence of the conditions precedent for the exercise of jurisdiction under section 34(1).

12. Our answers to the questions of laws are, therefore, as follows:—

(i) In the affirmative in the sense that there was no defect in the service of the notice on the assessee;

(ii) In the affirmative; and

(iii) In the negative.

13. The parties will bear their own costs in the reference.

14. D.K Mahajan, J.:— I agree.

15. P.D Sharma, J.:— I agree.

Order accordingly.