JUDGMENT Chatterjee, J. - This is a Reference made at the instance of the Commissioner of income tax u/s 66(1) of the Indian income tax Act and the following question has been referred to this Court for its opinion: Whether, in the circumstances of the case, the Tribunal was right in holding that the income tax Officer, who had admitted in his order that Section 25(4) was applicable and gave relief to the Assessee, could not argue that Section 25(4) did not apply to the facts of the case? 2. A gentleman of the name of Banwarilal Khan died on. April 7, 1943. He was assessed to income tax under the provisions of the Indian income tax Act, 1918, on various sources of income, including income from business. The accounting period of the present Assessee for the relevant years began on April 14, 1942 and ended on April 13, 1943. The income tax Officer assessed the executrix under the will of Banwarilal Khan. The officer took the proportionate income up to the date of death of the testator, that is up to a week before the close of the accounting period. He held that u/s 23(4) of the income tax Act it was a case of succession and he gave relief to the Assessee, accordingly and did not tax the income of the business. But for the purpose of rate he added the income from the business to the total income. In his order u/s 23(5), he had stated that the assessment had been made u/s 23(3) read with Section 24B, although he had previously made it clear in his order that the case fell within Section 25(4). The matter went up on appeal before the Appellate Assistant Commissioner and the question was whether the income tax Officer was right in adding this sum in the calculation of the rate applicable. 3. The Appellate Assistant Commissioner held that the income tax Officer was wrong and that he should not have added the income from business to determine the rate. An appeal was preferred against the decision of the Appellate Assistant, Commissioner. The Tribunal held that the view taken by the Appellate Assistant Commissioner was correct. 3. The Appellate Assistant Commissioner held that the income tax Officer was wrong and that he should not have added the income from business to determine the rate. An appeal was preferred against the decision of the Appellate Assistant, Commissioner. The Tribunal held that the view taken by the Appellate Assistant Commissioner was correct. On behalf of the Department, the Authorised Representative appearing on behalf of the Commissioner of income tax wanted to argue that Section 25(4) did not apply to the case, but the Tribunal did not come to any conclusion on the point. The Tribunal stated: Whether Section 25(4) applies to a ease like this is a matter for argument, but we think that, so far as this case is concerned, this point cannot be allowed to be argued by the Authorised Representative on behalf of the income tax Officer, because the income tax Officer has applied Section 25(4) to this case and did not choose to tax the income from this source in the hands of the executrix. 4. The Tribunal realised that a point of law did arise and it is an important point which the Department urged before us--whether the income tax Officer, once having admitted that the case fell within, Section 25(4), could take up a different position at the appellate stage and argue the point before the Tribunal that Section 25(4) was not legally applicable. 5. I have no doubt that there is no estoppel in such a case and it is open to the revenue authorities to put forward the argument which they wanted to advance before the Tribunal. u/s 33(2) of the Indian income tax Act, the Commissioner may, if he objects to any order passed by the Appellate Assistant Commissioner u/s 31, direct the income tax Officer to appeal to the Appellate Tribunal against such order. 6. That simply means that the income tax Officer is used as a machinery for the purpose of taking the proper proceedings in order to challenge the validity of the assessment and in order to move the Appellate Tribunal for an authoritative adjudication. The officer is not a party in the real sense of the term and there is no question of his being bound by any statement or admission on a point of law which he might have made at any earlier stage of the income tax proceedings. The officer is not a party in the real sense of the term and there is no question of his being bound by any statement or admission on a point of law which he might have made at any earlier stage of the income tax proceedings. It is only fair that the revenue authorities should have a chance of arguing the point which it wants to urge before the Tribunal and it is for the Tribunal after hearing both the parties to come to its decision. We are not expressing any opinion as to the correctness of the contention which the Department wants to put forward before the Tribunal. Mr. Ghose frankly concedes that on that basis his client will not be prejudiced in any way and it will be open to his client to urge any point in justification of the stand which she had taken up, namely, that Section 25(4) was really applicable to the case. 7. I answer the question referred to us in the negative and I hold that the revenue, authorities are entitled to argue that Section 25(4) did not apply to this case. 8. The parties will bear their own costs. Harries, C.J. 9. I agree.