JUDGMENT : Panigrahi, C.J. - This is an application u/s 66(2) of the Indian income tax Act, praying for the issue of a writ to the income tax Appellate Tribunal, Madras Bench B, to state a case for the decision of this Court. 2. The Petitioners constituted a joint undivided Hindu Mitakshara family and were carrying on business under the name and style of "Sadai Dalai, Banamali Dalai". The coparcener's became divided and the joint family business ceased to exist with effect from 31st March, 1939. A petition was filed before the income tax Officer u/s 25-A of the Act, to recognise the partition, and the enquiry was posted for hearing on the 13th July 1944. On that day the co-parceners filed affidavits and several other documents to prove the partition among themselves. The partition was recognised and the assessment was completed on the 19th January, 1943. An appeal against the order of assessment was disposed of on the 10th April 1946. It further appears that the income tax Officer was moved by the Petitioners on the 5th February, 1946 for the relief u/s 25(3) and 25(4). That petition having been rejected both by the income tax Officer and by the Appellate Assistant Commissioner, an appeal was taken to the income tax Appellate Tribunal in I.T.A. 1949 of 1951-52 and the Tribunal held that the Petitioner s were not entitled to a refund of the excess tax paid by them, but directed the income tax Officer to scrutinise the assessment claim u/s 25(3) and 25(4). The Petitioners thereafter moved the Tribunal to refer the case to this Court u/s 66(2) of the Indian income tax Act. The Tribunal, by its order dated 3rd March, 1953, held that no question of law arose and rejected the petition. 3. The order of the Tribunal shows that on the 13th July, 1944 a number of papers were filed by the assesses in connection with the proceedings u/s 25-A. Among the papers filed on that day is a petition claiming relief u/s 25(8). The Petitioners prayed therein that the income of the business for the accounting year 1-4-42 to 31-3-43 may be substituted by the income for the accounting year 1-4-43 to 31-3-44. The Petitioners prayed therein that the income of the business for the accounting year 1-4-42 to 31-3-43 may be substituted by the income for the accounting year 1-4-43 to 31-3-44. The taxing authorities have held that this petition "was somehow smuggled into the records", the reason for this remark being that it does not bear the initials or signature of any officer. The question is whether this inference is justified by the evidence on the record and secondly whether, apart from the claim for refund made by the Assessee, the taxing officer is not bound to refund the amount u/s 25(3). It does not appear that any enquiry was made in the office as to how this paper came into the records. The assertion of the Petitioners that it was filed along with several other papers has not been controverted. The mere fact that it does not bear the initials or the signature of the income tax Officer or any other officer is not enough justification for holding that the paper has been smuggled into the records. It is asserted on behalf of the assesses that the other papers filed by them on that day were also not signed on initialed by any officer. In these circumstances, it appears to me that the income tax authorities have improperly rejected the claim made by the assesses. A second reason given by the income tax authorities for rejecting the Petitioners' claim, which has also been adopted by the Appellate Tribunal, is that the matter should have been agitated during the hearing of the appeal against the assessment. I am of opinion that when the Petitioners were challenging the amount of tax payable, it was neither necessary nor relevant to raise any question relating to refund. Obviously, they could not then have known what amount of tax would ultimately be fixed and any question relating to the refund of excess tax would not properly arise. I am therefore satisfied that the material on the record does not justify the finding that the petition was surreptitiously introduced into the records. 4. Obviously, they could not then have known what amount of tax would ultimately be fixed and any question relating to the refund of excess tax would not properly arise. I am therefore satisfied that the material on the record does not justify the finding that the petition was surreptitiously introduced into the records. 4. The Tribunal seems to have committed an error of law in holding that the claim for refund should have been made u/s 25(5) of the Act, within one year from the date on which the business was discontinued, Section 25(3) says that where any business is discontinued "no tax shall be payable in respect of the income, profits and gains of the period between the end of the previous year and the date of such discontinuance", It also lays down that the Assessee may further claim that the income, profits and gains of the year shall be deemed to have been the income, profits and gains of the said period, The claims contemplated in this Sub-section are firstly, that the income of the previous year may be deemed to have been the income between the end of the previous year and the date of discontinuance. If the first claim is made, the Act says no tax shall be payable in respect of the income between the end of the previous year and the date of discontinuance, Yet another result is to follow, and that is that if such a claim is made the taxing authority is bound to make an assessment on the basis of the income of the said period and if the tax of the previous year exceeds the amount payable on the basis of such assessment, eta refund shall be given of the difference", Sub-section (5) of Section 25 says that no claim to the relief afforded under Sub-section (3) shall be entertained unless it is made before the expiry of one year from the date on which the business, profession or vocation was discontinued. The claim referred to in this Sub-section is the claim contemplated in Sub-section (3) namely, the claim that the business has been discontinued and that the income of the previous year shall be deemed to have been the income of the said period, The Sub-section does not require the Assessee to make a further claim for refund of the excess amount and it has been expressly made obligatory on the taxing authorities to order such refund, As pointed out already, Sub-section (3) of Section 25 clearly says that a refund shall be given" of the difference if excess tax has been paid, This provision is explicit, mandatory and unconditional. It Is the duty of the taxing officer to direct a refund and pay over the difference. Section 48 of the Act has no application to the refund statutorily ordered in Section 25(8), nor is there any time-limit laid down for asking for, or granting, a refund under that Sub-section, The Tribunal was, therefore wrong in holding that the claim to refund should have been made within one year of the discontinuance of the business. 5. The questions of law which arise on this application are (1) Whether, on the materials on record, the Tribunal was justified in holding that the petition of the Assessee dated 13th July 1944 under Sub-section (3) and (4) of Section 25, was surreptitiously brought into the record and (2) Whether refund should not be allowed u/s 25(3), even if the claim for such refund is not made within one year of the discontinuance of the business. 6. I would accordingly allow this petition and direct the income tax Appellate Tribunal, Madras Bench B, to state a case, u/s 66(2) of the Act, and refer it to this Court for decision. Misra, J. 7. I agree. Final Result : Allowed