JUDGMENT
Ranganathan, J.
1. An assessment order was made on March 28, 1974, in respect of the income earned by Shri Nathu Ram during the previous year relevant to the assessment year 1971-72. The assessed had filed a return on February 1, 1972, but passed away on July 20, 1972. The assessment was challenged in appeal by the legal representatives before the completion of the assessment. The Appellate Assistant Commissioner accepted this plea but, instead of annulling this assessment order, as contended for by the assessed, sent the matter back to the Income-tax Officer to complete the assessment fresh after giving the legal representative due notice. The assessed preferred a further appeal to the Tribunal but with no success. The Tribunal held that the completion of the assessment without prior notice to the legal representatives was merely an irregularity and that this could be cured by setting aside the assessment directing a fresh assessment in accordance with the law after proper notice. An objection was also taken before the Appellate Tribunal at the fresh assessment, the Tribunal would be extending the ordinary period of limitation available for completion of an assessment since a reassessment in pursuance of such a direction could be governed by the provisions of section 153(3) which removes the bar of limitation ordinarily applicable in respect of the assessment. But this contention was also rejected by the Tribunal.
2. In pursuance of the order of the Tribunal, a fresh assessment was made on the executor of the will of late Shri Nathu Ram on September 10, 1979. The assessed preferred objections to the Appellate Assistant Commissioner and the Appellate Tribunal reiterating his contentions that the assessment dated September 10, 1979, was barred by limitation and could not be saved by what claimed to be an invalid direction given by the Tribunal. The Tribunal however, rejected these contentions on the short ground that these pleas had already been raised by the assessed in the earlier appeal to the Tribunal. The Tribunal had disposed of these contentions and though the assessed preferred a petition under section 256(1) from the order of the Tribunal, he had to not pursued the matter further under section 256(2) when the Tribunal dismissed the application under section 256(1). Thus, the earlier order of the Tribunal had become final and the issues settled therein could not be agitated again.
3. The assessed applied for a reference to this court of the following questions of law said to arise out of the order of the Tribunal disposing of the appeal or the second time :
“1. Whether, on the facts and circumstances of the case, the Tribunal was correct in holding in law that the assessment order in respects or assessment year 1971-72 passed by the Income-tax Officer dated September 10, 1979, was not invalid being barred boy limitation ?
2. Whether, on the facts and in the circumstances of the case, the Tribunal was correct in holding that the Appellate Assistant Commissioner vide his order dated June 21, 1975, which was confirmed by the Income-tax Appellate Tribunal, vide order dated July 28, 1977, in ITA No. 2449 (Delhi) of 1975-76, could extend the bar of limitation imposed under section 153(3) beyond the period specified therein?
3. Whether in law an assessment which would have been annulled but was only set aside could get fresh lease of life by its merely having been set aside instead of being annulled?
4. Whether, on the facts and in the circumstances of the case, the ratio of the decision by the Supreme Court in the case of Guduthur Bros. v. ITO [1960] 40 ITR 298, could have any application to the petitioner’s case in the matter of legality of the assessment and its sustainability?
5. Whether the Tribunal was correct in ignoring the ratio of the decision in the case of Jai Prakash Singh v. CIT [1978] 111 ITR 507 (Gauhati), which clearly directs that an appellate authority cannot exceed its powers and give fresh lease of life to proceedings by saving limitation by setting aside the assessment instead of annulling the same which is distinguishable from the ratio of the decision in the case of Guduthur Bros v. CIT [1960] 40 ITR 298 (SC), the assessment being initially invalid in law?”
4. This application has been rejected by the tribunal and hence this petition under section 256(2) seeking reference of the same questions.
5. Shri Sharma, learned counsel for the assessed, contended that the Tribunal’s order gives rise to the question of law whether the assessed was not entitled to urge before it the plea regarding the assessment dated September 10, 1979, being barred by limitation because this plea had already been raised and rejected by the Tribunal in the earlier appeal filed against the original assessment. There are two difficulties in accepting the contention.
6. In the first place, though the assessed had sought for the reference of as many as five questions of law, the question now urged by Shri Sharma is not many as five questions of law, the question on which reference was sought from the Tribunal. It is well settled that the jurisdiction of the High Court under section 256(2) is in the nature of a mandamus and this court can call upon the Tribunal and of which reference to this court was sought before the Tribunal. Moreover, this is also not one of the questions the reference of which is sought in the present application. In these circumstance, we are unable to call upon the Tribunal to refer this question and state a case in respect thereof. The second difficulty is that even assuming that the question raised by Shri Sharma does arise out of the order of the Tribunal and is a question of law reference of which can be directed, we are unwilling to do so for the simple reason that the conclusion of the Tribunal appears to be so obviously and patently correct that the answer to the question proposed is self-evident. It is a settled principle of law that there should be a finality of legal proceedings. When the assessment was made in the first instance, the assessed raised in the appeal filed buy it they contentions that the assessment was void and illegal, that the Tribunal was not competent to give a direction validity under section 153(3) and that the proper course to be adopted by the Tribunal was to annual the assessment and not to set aside the same and direct the Income-tax Officer to make a fresh assessment. These contentions were duly considered by the Tribunal and were rejected. They have become final in terms of section 254(4) of the Act, there having been no reference from the order of the Tribunal. To permit the assessed to raise these contentions once again will offend the rule of final it of judicial proceedings. In fact, the very decision on which counsel for the assessed relies makes this point clear. In M. Syed Alavi v. State of Kerala [1981] 48 STC 150 (Ker) [FB], it was pointed out by the Full Bench of the Kerala High Court that where matters are decided by one appellate authority in the first instance, that appellate authority would be bound by the said order and cannot consider those contentions again when the matter subsequently comes up after remand. In that case, initially, the Appellate Assistant Commissioner had disposed of the appeal. When the same point were urged when the assessment was made on remand the Kerala High Court pointed out that up to the stage of the Appellate Assistant Commissioner that would be final, but that it would be open to the Tribunal to consider the contentions if raised before it. On the same principle, in the present case, the contentions having been raised and decided by the Tribunal, it was not open to the Tribunal to reconsider these contentions and the proper and appropriate remedy of the assessed was to file a reference application and pursue the same against the original order of the Tribunal The decision of the Supreme Court in the case of CIT v. Rao Thakur Narayan Singh , though rendered in a slightly different context, also lays down the principle of finality above referred to. In these circumstances, we are of the opinion that the view taken by the Tribunal was obviously the correct view and the only view possible in the circumstances. We, therefore, do not see any justification for calling for a reference on this question.
7. Learned counsel for the assessed contended that in any event the assessment order dated November 10, 1979, is subsequent to the original order by the Tribunal and that the assessed is entitled to raise a plea that the assessment is barred by limitation. In our opinion, though the order dated September 10, 1979, is subsequent to the order of the Tribunal, the question really is whether the direction given boy the Tribunal, after setting aside the assessment, that a fresh assessment should be made given in the course of the former appellate proceedings was valid and the assessed had challenged the validity of such a direction before the Tribunal. But that challenge had been repelled. In the circumstances, that is also an issue on which go a decision had already been given and on which it is not open to the assessed once again to raise a controversy.
8. Learned counsel also relied upon the decision for the Bombay High Court in P. V. Doshi v. CIT [1978] 113 ITR 22 and sought to contend that the principle of finality will not apply since in this case the original assessment itself was, according to the petitioner, null and void. In our opinion, this plea also suffers from a infirmity. It is no doubt the plea of the assessed that the assessment in void, but the question whether the assessment was void ab initio or was an irregular assessment, the supervening illegality in which case could be cured was a debatable point which was urged before the Tribunal and was decided against the assessed. In fact that decision appears to follow from the principle laid down by the Supreme Court in Estate of Late Rangalal Jajodia v. CIT and also the decision of this court in CIT v. Roshan Lal [1982] 134 ITR 145. We are not expressing any opinion on this issue, but we are pointing this out only to show that this is not a clear case of a void assessment, but one in which the question whether it was a void or irregular assessment was raised and decided on the earlier occasion.
9. Counsel submitted that at least the question whether the assessment dated September 10, 1979, is barred by limitation should be directed to be referred. We are unable to isolate this question for the reasons already mentioned. If the assessed is precluded from questioning the validity of the direction given by the Tribunal, then obviously the provisions of section 153(3) apply and no question of limitation aries. In this context, we may point out that, in similar circumstances, in Jajodia’s case, , it was held that second proviso to section 34(3) of the 1922 Act (corresponding to section 153(3) of the 1961 Act) would apply and there would be no limitation for the making of a reassessment in pursuance of the direction given in such circumstances. This question, therefore, is not, only not open to the assessed to urgent the present stage but it is also concluded by a decision of the Supreme Court.
10. For the above reasons, we have come to the conclusion that no reference is called for in the circumstances of the present case. The petition is, therefore, dismissed. In the circumstances of the case, we made no order as to costs.
11. Petition dismissed.