JUDGMENT RAY, J. 1. THE question referred to us is as follows : "Had the ITO (Non-companies Income-tax-cum- Excess Profit Tax, District Calcutta) jurisdiction to make an assessment of the assessee in respect of the years in question ? "The assessee was at the relevant time a resident of Rangpur. The assessee was a partner in four firms. These four firms had different sets of partners and there were separate deeds of partnership. The assessee was assessed at Rangpur up to the asst. yr. 1942-43. 2. THE present reference relates to the asst. yrs. 1944-45, 1945-46, 1946-47 corresponding to the accounting years, 1943-44, 1944-45 and 1945-46. Since the ITO, Rangpur, had no jurisdiction for the assessment under the EPT Act, the records were forwarded to the ITO, Central, Calcutta, on 4th Jan., 1947. On 9th March, 1948, the assessee's pleader was served with notices under s. 23(2) of the Indian IT Act by the ITO for the production of accounts and other relevant evidence by 20th March, 1948, for the asst. yr. 1944-45. The assessment was made under s. 23(4) on 24th March, 1948, for the year 1944-45. In respect of the other two years 1945-46 and 1946-47 the assessments were completed under s. 23(4) for default under s. 22(2). The ITO rejected the assessee's applications under s. 27 of the IT Act. The assessee preferred appeals to the AAC against the assessment and also filed appeals against the order under s. 27 for reopening the assessments. The AAC gave relief in the quantum but dismissed the appeals that were filed against the order under s. 27. In the appeals the assessee raised contentions in regard to the jurisdiction of the ITO. The assessee lost in its contention and, thereafter, went up to the Tribunal. The Tribunal dismissed the appeals relating to the orders passed under s. 27 and remanded the appeals relating to the quantum of income. On remand the AAC directed the ITO to examine the assessee's books in the light of the observations made by the Tribunal. The AAC after hearing the assessee confirmed the assessment on the basis of the report of the ITO. The assessee challenged the jurisdiction of the ITO on the ground that the assessee was not aware of the transfer of his file from Rangpur to Calcutta. The AAC rejected the contention of the assessee. The AAC after hearing the assessee confirmed the assessment on the basis of the report of the ITO. The assessee challenged the jurisdiction of the ITO on the ground that the assessee was not aware of the transfer of his file from Rangpur to Calcutta. The AAC rejected the contention of the assessee. The assessee, thereafter, went up to the Tribunal. The Tribunal held that the assessee's objection to the jurisdiction of the ITO related to the place of assessment and, therefore, did not entertain the objection to jurisdiction. 3. IT should be stated here that before the Tribunal the assessee contended that as to the asst. yr. 1943-44 the assessee had taken similar objection to the jurisdiction of the ITO but the Tribunal held that it was an objection which related to the place of assessment. After the Tribunal passed the order on 4th Aug., 1955, the assessee preferred an application under s. 35 where the assessee contended that the objection did not relate to the place of assessment but to the taxable territories. The Tribunal passed an order on 9th Jan., 1956, on the application under s. 35 and held that, in the absence of facts required to decide whether the assessee was a resident in the taxable territories or not, the Tribunal could not determine the assessee's contentions. 4. COUNSEL for the assessee contended that on 15th Aug., 1947, as a result of the Indian Independence Act, British India ceased to exist and from the appointed day, 15t Aug., 1947, the ITOs of the Dominion of India as also the Indian IT Act had jurisdiction only in respect of the area of the Dominion of India. It was, therefore, contended that the ITO within the Dominion of India could deal with either the person of the resident or property of the resident or of a non-resident within the Dominion of India. It was also contended that if a non-resident, that is a person who became a non-resident from 15th Aug., 1947, had no income within the taxable territories he would not be within the jurisdiction of the ITO or authorities. COUNSEL for the assessee thus contended that before the ITO in India could continue proceedings he would have to be satisfied either that the assessee was a resident in India or that his income was in India. COUNSEL for the assessee thus contended that before the ITO in India could continue proceedings he would have to be satisfied either that the assessee was a resident in India or that his income was in India. Counsel for the assessee referred to the Indian Independence (Income-tax Proceedings) Order, 1947. In the Income-tax Proceedings Order it is stated under s. 3 that where before the appointed day the jurisdiction of a tax officer under the relevant tax Act (meaning thereby the Indian IT Act or the EPT Act) has been altered in connection with the setting up of the Dominions of India and Pakistan, or where after the appointed day the case of an assessee is transferred from one Dominion to the other by agreement between the Central Boards of Revenue of the two Dominions, and by reason of such alteration of jurisdiction or transfer the case of an assessee falls to be dealt with on or after the appointed day by the tax authorities of India or as the case may be of Pakistan, all proceedings relating to the case pending before any tax authority of Pakistan, or as the case may be of India, shall be transferred to the corresponding tax authority of India, or as the case may be of Pakistan, and shall be disposed of by the last mentioned tax authority in accordance with law. 5. THE statutory provisions on which counsel for the assessee relied show first that after 15th Aug., 1947, if the case of an assessee is transferred from one Dominion to the other by agreement between the Boards of Revenue of the two Dominions the case shall be disposed of by the tax authority of the Dominion to which the case is transferred. 6. IN the present case it is admitted that the case of the assessee was not transferred by any such agreement. 6. IN the present case it is admitted that the case of the assessee was not transferred by any such agreement. Secondly, the Income- tax Proceedings Order contemplates in s. 3 that if before the appointed day the jurisdiction of a tax officer under the relevant tax Act has been altered in connection with the setting up of the dominions of India and Pakistan and by reason of such alteration of jurisdiction the case falls to be dealt with on or after the appointed day by the tax authorities of India or of Pakistan as the case may be, all proceedings relating to the case pending before the tax authority of India or Pakistan, as the case may be, shall be transferred to the corresponding tax authority of India or Pakistan. In the present case, counsel for the assessee did not contend that there was any alteration of jurisdiction of a tax officer before the appointed day, nor was he able to show that the case of the assessee was governed by the first limb of s. 3 of the Indian Independence (Income-tax Proceedings) Order. I In the present case the assessments related to the period before the appointed day. The income is derived from territories which were within British India as it stood prior to the appointed day. The jurisdiction of the Revenue authority was there admittedly up to 15th Aug., 1947. The question is whether by reason of the partition of India the jurisdiction of the Revenue authorities of the Dominion of India ceased in respect of an assessee who was resident at the relevant time of the accounting period in British India as it then was and also derived income from British India as it then was. Counsel for the assessee contended that after 15th Aug., 1947, the assessee became the resident of Lalmonirhat which on and from the appointed day became part of the Dominion of Pakistan and therefore the taxing authorities of the Dominion of India ceased to have any jurisdiction on such non-resident person. In my view counsel for the Revenue authorities was right in his contention that it was a question of fact as to whether the assessee was a non-resident after 15th Aug. In my view counsel for the Revenue authorities was right in his contention that it was a question of fact as to whether the assessee was a non-resident after 15th Aug. 1947 and the order of the Tribunal on the application under s. 35 made by the assessee states that the assessee placed no facts before the Tribunal from which the Tribunal could hold that the assessee was not a non-resident and, therefore, the finding of the Tribunal is that it has not been proved that the assessee was a non-resident. Further more, the mere fact of non-residence or withdrawal of residence after the accounting period would not in my view take away the jurisdiction of the Revenue authorities to assess a person in respect of an assessee's income during the accounting period when he was within the jurisdiction of the taxing authorities. Suppose a person's residence is in India during the accounting period and after the accounting period expires, he goes outside India and contends that because he is residing outside India at that time he is not assessable. In my opinion, the answer to the contention is in the negative for the obvious reason that his assessability during the accounting period had been already attracted by his residence and his income during the period of residence within the territories of the jurisdiction of the taxing officer. In the case of Whitney vs. IRCs (1926) AC 37 (HL), Lord Dunedin said at p. 54 of the report that there are three stages in the imposition of a tax. There is first "the declaration of liability, that is the part of the statute which determines what persons in respect of what property are liable. Next, there is the assessment. Liability does not depend on assessment. That, ex hypothesi, has already been fixed. But assessment particularises the exact sum which a person liable has to pay. Lastly, come the methods of recovery, if the person taxed does not voluntarily pay." 7. COUNSEL for the Revenue authorities contended that the assessments were made on 24th March, 1948, and 15th March, 1948, and the assessee filed a return on 27th Oct., 1944, in respect of the asst. yr. 1944-45 and described himself as resident and ordinarily resident. In respect of the asst. yrs. 1945-46 and 1946-47 no return was filed and the assessment was made under s. 23(4) of the IT Act. yr. 1944-45 and described himself as resident and ordinarily resident. In respect of the asst. yrs. 1945-46 and 1946-47 no return was filed and the assessment was made under s. 23(4) of the IT Act. The AAC found, as appears at p. 35 of the paper-book, that the assessee's advocate submitted that the assessee's income was derived from certain bills submitted to the railway authorities and payments were made by cheque at 3, Kailaghata Street, Calcutta. The Tribunal in the order appearing at p. 78 following of the paper-book found that these receipts from the railway were in the name of the Karta of an HUF and dealt with the contention of the assessee that there should be allocation of profits on the basis of partnership between the assessee and the other persons. The Tribunal held that the income belonged to the HUF and not to the firm as alleged by the assessee. Counsel for the Revenue authorities was therefore right in his contention that the finding of the Tribunal was, firstly, that the income belonged to the HUF and not to the alleged firms, secondly, that the income was derived within British India as it then was and, thirdly, that some of the places of business of the assessee were Jalpaiguri and Siliguri which since the appointed date were within the Dominion of India. 8. COUNSEL for the revenue authorities referred to the agreement for avoidance of double taxation of India and Pakistan which came into effect in the year 1947 in exercise of the powers conferred by s. 49AA of the Indian IT Act, s. 11A of the EPT Act, 1940, and s. 18A of the Business Profits Tax Act, 1947. The taxes which are the subject of that agreement are the taxes imposed in the Dominions of India and Pakistan by the Indian IT Act, the EPT Act and the Business Profits Tax Act as adopted in the respective Dominions. The taxes which are the subject of that agreement are the taxes imposed in the Dominions of India and Pakistan by the Indian IT Act, the EPT Act and the Business Profits Tax Act as adopted in the respective Dominions. Under Art. 2 of that agreement it is contemplated that the agreement shall continue in force so long as the basis of residence and the scope of the charging provisions remain unaltered in both the Dominions and was applied to the assessments under the said Act in both the Dominions in the assessments made on or after 15th August, 1947, for the assessment year 1947-48 and all other assessments on or after 1st April, 1948, excepting EPT Act assessments for chargeable accounting periods for which provisional assessments have been made before 1st April, 1948. The agreement, therefore, applies to assessments for 1947-48 and subsequent years made after 15th Aug. 1947 and assessments for 1946-47 and earlier years made after 31st March, 1948. The basis of the agreement is not relief against double taxation but avoidance of double taxation. Taking into consideration these facts and circumstances I am of opinion that the records and materials in the present case establish, firstly, that the assessee was admittedly a resident in India during the accounting years, secondly, that it has not been established that the assessee was not a non-resident subsequent to the accounting periods, thirdly, that the income was derived from India as the expression meant at the relevant time of assessment and, finally, that the taxing authorities had jurisdiction to deal with the assessee because his liability to be taxed had accrued prior to August 15, 1947. The agreement between the two Dominions also preserves the jurisdiction of the respective Dominions to assess in accordance with the provisions thereof. The question is, therefore, answered in the affirmative. The assessee is to pay the costs. Certificate for two counsel.