JUDGMENT Pathak, J. - This is a reference-made by the income tax Appellate Tri banal u/s 66(1) of the Indian Income Tax Act read with Section 21 of the Excess Profits Tax Act The questions referred for the decision of this Court by this reference are as follows: (1) Whether the Assessee having once exercised his option u/s 8(2) of the Excess Profits Tax Act (viz that the business be deemed not to have been discontinued) before the prescribed date and the option so exercised having been accepted by the Excess Profits Tax officer and the assessment nude on the basis thereof (in respect of a chargeable accounting period), the Assessee is entitled to withdraw the above option later on at the appellate stage with a view to claim that the business be deemed to have been newly commenced ? (2) If the answer to question (1) above be in the affirmative, whether in the present case the previous year 1938'(sic) determined for the assessment of 1939-40 can by itself be selected as a standard period by the Assessee under sub Clause (d) of Section 6(2) read with the proviso thereto, there having been no (and could not have been any) assessment for 1936 9 for a business deemed to have been newly started on 1st January, 1988 and having the calender year as its previous year and consequently no previous year determined for that assessment? 2. The Assessee is the firm of Messrs. A.H. Wheeler & Co. The chargeable accounting periods in respect of which this firm has been assessed to excess prohts tax are two: (1) 1st September 1939 to 31st December 1939 and to 1st January 1940 to 31st December 1940. In October, 1940 a notice u/s 13 of the Excess Profits Tax Act was issued to the Assessee calling upon him to furnish a return with respect to the first of the chargeable accounting periods mentioned above. In October, 1940 a notice u/s 13 of the Excess Profits Tax Act was issued to the Assessee calling upon him to furnish a return with respect to the first of the chargeable accounting periods mentioned above. By letter, dated November 6, 1940, the Assessee while asking for an extention of the date for the delivery of the return, purported to exercise the discretion conferred upon it by Section 8 in consequence of the change having taken place in the persons carrying on the business as a result of the death of one of the partners, and the Assessee gave intimation to the Excess Profits Tax Officer in the following terms: Further a change in the constitution of the firm look place with effect from 1st January, 1958(sic) on account of the death of the then senior partner, Mr. E.E. Moreau, but we should like you to treat this business as not having been discontinued for the purposes of computation of standard profits. 3. That Officer informed the Assessee by letter, dated November 22, 1940, that the election made in the assesee's letter was approved. In the month of May, 1941, a notice u/s 13 of the Excess Profits Tax Act was issued in respect of the second of the two above mentioned chargeable accounting periods. I appears that the returns were filed by the Assessee in repsect of both the chargeable acccunting periods in due course. Having elected to treat the business as continuing--despite the death of one of the partners--the Assessee--firm proceeded to exercise the option conferred upon it by Section 6(2) in the matter of the selection of the standard periods and asked for the fixation of the standard periods in accordance with Clause (d) of Sub-section (2) of Section 6 for the purpuse of determining the standard profits of the business in relation to both the above-mentioned chargeable accounting periods. The result was that on June 30, 1942. the assessment to excess profits tax was made in respect of both the chargeable accounting periods on the footing that there was no discontinuance of business. Pursuant to the assessment, notices of demand were served upon the firm on July 3, 1942. The result was that on June 30, 1942. the assessment to excess profits tax was made in respect of both the chargeable accounting periods on the footing that there was no discontinuance of business. Pursuant to the assessment, notices of demand were served upon the firm on July 3, 1942. One day before the service of the notice, namely, on July 2, 1942, the firm addressed a letter to the Excess Profits Tax Officer stating: We have just discovered that it will probably be more advantageous for us to select a slightly different standard period; but we ourselves are rather confused on the point as the Excess Profits Tax Act is beyond our(sic) understanding We shall, therefore, feel grateful if you will kindly fix a date on which one of our partners as also our Accountant can see your good-self and discuss the matter.... 4. The Excess Profits Tax Officer having completed the assessment prior to the receipt of this letter bad become functus officio and could not take any action on it,(sic) but in the two appeals which had been preferred by the essessee from the two assessment orders, the Assessee firm took up the position that it should be treated as new firm which commenced its business on January 1 1938, and the standard period applicable to it(sic) was the period from January 1, 1938, to December 31, 193b, which was the "previous year" as detennined u/s 2 of the Indian income tax Act for the purpose of the Income tax assess ment for the year ending 31st of March, l940. In taking up this position, the Assessee-firm withdrew the option which had been exercised by it in the course of the assessments made by the Excess Profits Tax Officer, and taking advantage of Section 8(1) of the Excess Profits Tax Act selected the standard period provided by Clause (8)(sic) of Sub-Section 2 of Section 6 of that Act. It appears that the Income Tax Department was represented by the Excess Profits Tax Officer before the Appellate Assistant Commissioner of Excess Profits tax. The Appellate Assistant Commission-er remarked: The Department takes no exception to the Appellant's withdrawing his application u/s 8( )(sic) at this stage if the option claimed is otherwise found available to the Appellants. 5. It appears that the Income Tax Department was represented by the Excess Profits Tax Officer before the Appellate Assistant Commissioner of Excess Profits tax. The Appellate Assistant Commission-er remarked: The Department takes no exception to the Appellant's withdrawing his application u/s 8( )(sic) at this stage if the option claimed is otherwise found available to the Appellants. 5. The result was that the Assessee-firm having resiled from the election made by it before the Excess Profits Tax Officer and the withdrawal of the election having been accepted by that officer the Appellate Assisstant Commissioner proceeded to decide the appeals before bim upon the footing that no election had been made by the Assessee in terms of Section 8(2) of the Excess Profits Tax Act. Ihe Appellate Assistant Commissioner took the view that the Assessee was not entitled to take the benefit of Clause (d) of Sub-Section 2 of Section 6 inasmuch as no business having been carried on by the assesses prior to January 1, 1938, there could be no "previous year" determinable u/s 2 of the Indian income tax Act for the purpose of the Income tax assessment for the year ending 31st of March, 1939 and the "previous year' determined for the year ending the 31st of March 1940 could not alone attract the application of Clause (d) of Sub-Section 2 of Section 6. In the result, the Appellate Assistant Commissioner dismissed the appeals of the Assessee and confirmed the assessment made by the Excess Profits Tax Officer in respect of both the above-mentioned chargeable accounting periods. Against the orders of the Appellate Assistant Commissioner, the Assessee appealed to the income tax Appellate-Tribunal. The Tribunal upheld the orders of assessment with a modification with which this reference is not concerned. In doing so, it rested its decision not only upon the pround taken by the Appellate Assistant Commissioner regarding the non-applicability of Clause (d) of Sub-Section 2 of Section 6 in a case where the 'previous year' is available only for one of the two assessment years mentioned in that clause, but also took the additional ground that the income tax Department did not possess the "legal right to concede that the Appellant-lant (Assessee) could withdraw the notice given in writing u/s 8(2)...." and, that in any event, such a withdrawal could not be made after the return had been delivered and assessment made. 6. 6. Thereupon the Assessee made applications u/s 66 (l) of the Indian income tax Act, read with Section 21 of the Excess Profits Tax Act, to the income tax Appellate Tribunal to refer questions of law arising out of its orders with the result that the Tribunal submitted a statement of the case and referred the questions mentioned above for decision to this Court. 7. With regard to the first question, it has been submitted on behalf of the Commissioner of income tax that election once exercised and intimated to the Excess Profits Tax Officer cannot be varied at a later stage of the assessment, much less in appeal after the assessment is complete; while the contention on behalf of the Assessee is that it is open to the Assessee to withdraw the election and to vary the opion, particularly when the Crown is not adversely affected by the withdrawal. It must be observed that the statute contains no provision for the withdrawal of the election. Options have been given to persons both under statutes relating to taxation as well as under other statutes; and sometimes a careful provision is made by the statute itself, whereby it is intended to confer the right of varying the option upon the person to whom such option was given. In the Indian Income-Tat Act, for example, u/s 2(11) an option is given to the Assessee to choose the "previous year" in the manner laid down therein. But a power is also given to the Assessee to vary the option after ha has once exercised it but with the consent of the income tax Officer and upon such conditions as that Officer may think fit. The absence of a similar provision in the Excess Profits Tax Act leads to the inference that it was not in the contemplation of the Legislature to give the power to the Assessee to vary the option after it has once been exercised. 8. It is obvious that where an Assessee elects to treat bis business as continuing after a change in the persons carrying on such business owing to the death or retirement of a partner, certain legal consequences flow from the exercise of such election. 8. It is obvious that where an Assessee elects to treat bis business as continuing after a change in the persons carrying on such business owing to the death or retirement of a partner, certain legal consequences flow from the exercise of such election. The machinery of the Excess Profits Tax Act has to be set in motion in a particular manner and the proceedings in relation to assessment have to be carried on by the Excess Profits Tax Officer upon the footing that there was no discontinuance in the business and no commencement of a new businss upon the death or retirement of a partner. It is manifest(sic), therefore, that an option, once exercised but later varied, would lead to inconvenient, results. All the proceedings taken by the Excess Profits Tax Officer up to the stage of the reversal of the option would have to be set aside and the assessment would have to be re-started from the stage when the elction was made in accordance with Section 8(2) of the Excess Profits Tax Act. 9. It should be borne in mind that there is a time-limit prescribed for the exercise of this option, and the election has to be communicated to the Excess Profits Tax Officer in a formal manner by notice given to him in writing before the prescribed date. And if power to vary the election is conceded to the Assessee, what would be the limit to the exercise of that power? 10. Could election be made and withdrawn any number of times? These considaration lead to the conclusion that the election once made is absolute and is not subject to variance thereafter at the sweet will of the assesse. This result is in cousonance with the general principles governing cases where the power of election is accorded to an individual by the law. Ihese general priaciDtes have been thus stated by Lord Backburn in the case of Benjamin Scarf v. Alfred George Jardine 1882 A C 345. Now on the question there are a great many cases; they are collected in the notes to Dampor'S case ((sic)1 Sm. L.C. 8th ed. 47, 59)(sic), and they are uniform in this respect, that where a man has an option to choose one or other of two inconsistent things, when once he has made his election it cannot be retracted it is final and cannot be altered. L.C. 8th ed. 47, 59)(sic), and they are uniform in this respect, that where a man has an option to choose one or other of two inconsistent things, when once he has made his election it cannot be retracted it is final and cannot be altered. Quod semel placurt(sic) in electionbus, amplius displicere non potest". That IS Coke upon Littleton (146 a) and I do not doubt that there are many older auth rities to the same effect; but that rule has been uninformly acted upon from that tun at least down to the present. When once there has been an election to do one of the two things you cannot retract it and do the other thing; the election once made is finally made. 11. The question of the right to vary the option also arose before the House of Lords in the case of Cory Brothers v. Owners of the "Mecca" 1897 A C 286, in relation to the right of the creditor to make appropriation of payments made by the debtor. In that case, the effect of the communication of the appropriation made by the creditor was also considered. At page 292, Lord Herschell is reported to have remarked: The question to be determined is what was the effect of the transmission to the Respondents of the statement of account of August 12th(sic). It is clear that if the Appellants had merely entered in their own books an account such as was transmitted it would not have amounted to my appropriation by them, and they would still have been at liberty to appropriate the payment as they pleased. It is equally clear, however, that when once they had made an appropriation and communicated it to their debtors they would have no right to appropriate it otherwise. 12. This was also the view taken by a Full Be of of this Court consisting of Sir Shah Muhammad Sulaiman, C.J. Bennet and Iqbal Ahmad, JJ (as they then were) in the case of Gajram Singh v. Kalyan Mal (1936) A W R (H C) 1136 : 58 All 79)(sic). The Full Bench observed: The creditor'S right to make the appropriation would certainly last until he had done some-thing which puts an end to his option. The Full Bench observed: The creditor'S right to make the appropriation would certainly last until he had done some-thing which puts an end to his option. In the case of Copy Brothers and Co v. Owners of the "Mecca" 1897 A.C. 286(sic) (293) Lord Michagnten(sic) laid down that the creditor may exercise his right "until the very last moment". It has been held in some cases that the option may be exercised even during the pendency of the suit. See Seymour v. Pickett(sic) ''(sic) a i K B 7:5(sic) and Kunja-mohan Shahu v. Karunkanta Sen (1933) 60 Cal. 1265. But no case has been cited where the option has been allowed as of right after the judgment has been pronounced by the first Court. I. seems to us that if the creditor has not chosen to make my appropriation until the Court pronounces its opinion, the provisions of Section 61 come into operation, and it is the duty of the Court to died the appropriation in accordance with that section. After the decree of the first Court has been passed it would be too late for the creditor to make up his mind to appropriate the payment in a particular way. The appellate Court should as a rule pass the decree which the trial Court would have passed on the date when it decided the case. 13. In that case it was also observed that: The fact that the creditor's counsel afters to make the appropriation in the appeal should not carry any weight. 14. The answer given by the Fall Bench to the question referred to it was: The creditor can appropriate the payment to any debt unit the judgment is pronounced by the trial Court, but not thereafter. 15. Their Lordships of the Privy Council set the seal of their apporoval on the view taken by the Full Beach in the above case in their decision in AIR 1940 63 (Privy Council) . their Lordships applied the law as late(sic) down by Lord Herschell in the case of Cory Brothers and company Limited v. 16. The Owners of the Turkish Steamship "Mecca" 1897 A C 285 (sic), and proceeded: There is no obligation upon the creditor to make the appropriation at once though when once he has made an appropration and communicated ii to the debtor, he would have no right to appropriate it otherwise. 17. The Owners of the Turkish Steamship "Mecca" 1897 A C 285 (sic), and proceeded: There is no obligation upon the creditor to make the appropriation at once though when once he has made an appropration and communicated ii to the debtor, he would have no right to appropriate it otherwise. 17. Thus it appears in the case of appropriation of payments made by a creditor, the limit of time set to such a right is the date of the judgment and before that event occurs, the right could be exercised at any time; and further the communication of the exercise of the election need not be formal. 18. In the case of election u/s 8(2) of the Excess Profits Tax Act, as has been stated above, communication of the election has to be made in a formal manner by notice in writing and there is a statutory, time-limit to the exercise of that power. 19. The present case is, therefore, a fortiori and the general principle uniformly adopted by the highest Courts would apply to the present case with greater force. It would seem that after the time prescribed by the statute for the making of the election u/s 8(2) of the Excess Profits Tax Act has expired, there is no option left to the Assessee, and it is cot open to him to change his mind after the communication of the election made by him to the Excess Profits Tax Officer and after the expiry of the time-limit prescribed by the statute. I cannot better conclude the consideration of this question then by quoting the following observations of Sir Asutosh Mockerjee in the case of Bai-kunta Nath Dey v. Nawab Salimulla Bahadur (1907) 6 Cal. L.J. 507(sic), at page 556, When a litiga t(sic) has the light to choose between two remedies which are not coexistent but alternative, he may select and adopt one as better ad pled that the otter, to work out his purpose; but once he has made his choice, and adopted one of the alternative remedies, his act at once operates as a bar as regards the other, and the bar is final and absolute. 20. It is worthy of note that the case of Benjamin Scarf v. Alfred George Jardine 1882 A C 345. mentioned above and this case of Bainkuntha Nath Dey v. Nawab Salimulla Bahadur (1907) 6 Cal. 20. It is worthy of note that the case of Benjamin Scarf v. Alfred George Jardine 1882 A C 345. mentioned above and this case of Bainkuntha Nath Dey v. Nawab Salimulla Bahadur (1907) 6 Cal. L.J. 507(sic), have been followed by a Bench of this Court consisting of Sir Lal Gopal Mukerji and Young JJ. in the case of Mangat Rai v. Duli Chand AIR 1933 All 759 : (1933) 2 A.W.R. 1193 21. The next question which must be considered new is whether the election once exercised cannot be withdrawn after the assessment, even with the consent of the Excess Profits Tax Officer. The question bristles with difficulties. If 'statutory election' -- if I may use that expression is once made final and conclusive, no amount of consent on the cart of an Officer of the Crown, who is bound to act in accordance with the terms of the statute, should be allowed to permit the Assessee to re-open the matter. To hold otherwise would lead to the result that such an Officer is entitled to release the Assessee from the restriction of the time-limit imposed by the statute for the exercise of the option. Learned Counsel for the Department has contended that the Excess Profits Tax Officer is not competent, under the law, to bind the Crown by the statements and declarations for which no power is expressly conferred upon him by the statute. Reliance has been placed by him on the case of the Trustees of the will of H.K. Brodie v. The Commissioner of Inland Revenue 17 TC 432 (sic). In that case, the Assessee sought to found a case of estopped upon a statement made by the inspector of taxes contained in a letter addresed by the latter to the Assessee that no income tax would be claimed in respect of certain sums. The plea of estopped was repelled by Finlay, J. and one of the grounds upon which the learned Judge rested his decision was that it was no part(sic) of the duty of the officials of the Inland revenue to make contracts or to make declarations. In the opinion of that learned Judge, it was impossible to held that the Crown was, in the circumstances, bound by the statements made by those officials. 22. In the opinion of that learned Judge, it was impossible to held that the Crown was, in the circumstances, bound by the statements made by those officials. 22. At the time when an election is made one of the two alternative rights is abandoned, and, having regard to the nature of the Act of "election" it is not possible to bold that a right to retract subsists after the Act becomes final and conclusive. It should not be open to the party to whom the right of election is given for the exercise of which right a timelimit is imposed, to retract the same after the expiry of the time-limt, as that would mulltfy the statute. Thus the Crown would not be bound by an act of its officer who acts in a manner which is opposed to the terms of the statute. I am, therefore, of opinion that the consent of the Excess Profits Tax Officer would not avail the Assessee and the election, which was deliberately made, could not be retracted. For these reasons, I would answer the question No. 1 in the negative. 23. In view of the answer given to the first question, the second question becames immaterial and is only of an academic Interest. For this reason I do not consider it necessary that the second question should be answered. Waliallah, J. 24. I agree. 25. We answer the first question referred to us in the negative and we direct that the Assessee will pay the costs of the income tax Department, which we assess at Rs. 200. 26. Counsel for the Department is given six weeks' time in which to file bis certificate. A any of this judgment, under the seal of the Court and the signature of the Registrar, will be sent to the Appellate Tribunal.