( 1 ) THE petitioner is common in these two writ petitions. The petitioner is a firm carrying on mining business. The petitioner was assessed by the income Tax Officer under the provisions of the Income Tax Act, 1922, in respect of the assessment year 1960-61 and under the provisions of the income Tax Act, 1961, in respect of the assessment year 1961-62. The ITO did not accept the returns filed by the petitioner in respect of both the years and added Rs. 3,36,962 as income which the petitioner had derived from business during the assessment year 1960-61 and Rs. 4,45,726 to the business income of the assessment year 1961-62. On the aboye basis the ito proceeded to pass the orders of assessment. Against the said orders of assessment, the petitioner preferred appeals before the Appellate Asst. Commr. under S. 30 of the 1922 Act and S. 246 of the Act 1961 Act respectively. ( 2 ) THE Appellate Asst. Commr. was of the opinion that the addition made to income of the assessment year 1960-61 to the extent of Rs. 53,559 had to be dejected and that a sum of Rs. 83,600 had to be abided as income from undisclosed source. Similarly, in the case of assessment year 1961-62 he was of the view that the addition af Rs. 4,45,726 to income from business had to be deleted but addition of Rs. 1,82,887 had to be made as income from undisclosed source. Against the orders passed by the App. Asst, Commr. , the petitioner filed revision petitions before the Commr. of I. T. The revision petition in respect of the assessment year 1960-61 was disposed of by one Commr. of I. T. and the revision petition filed in respect of the assessment year 1961-62 was disposed of by a different Commr. of I. T. Both the commrs. were of the view that there was no substance in the revision petitions and they rejected them. Aggrieved by the orders passed by the commrs. of I. T. , the petitioner has filed these two, writ petitions. It is not disputed that the only source of income that was disclosed before the ITO and which was dealt with by him in these two cases was the business of the petitioner. The submission made on behalf of the petitioner before the Commrs. of I. T. , the petitioner has filed these two, writ petitions. It is not disputed that the only source of income that was disclosed before the ITO and which was dealt with by him in these two cases was the business of the petitioner. The submission made on behalf of the petitioner before the Commrs. of I T. and before this Court is that the Appellate asst. Commr. had no jurisdiction under S. 31 of the 1922 Act and s. 251 of 1961 Act to add a certain income from a source, not dealt with by the ITO or disclosed before the ITO while passing an order in the appeal. The Commrs. of I. T, who heard the revision petitions rejected the above contention. While doing so, whereas the Commr of I T. who dealt with the revision petition in respect of the assessment year 1960-61 was of the opinion that the Appellate Asst Cornmr. had not in fact taken into consideration the income derived from the petitioner from a source of income which had not been considered by the ITO, the Commr. who dealt with the revision petition in respect of the assessment year 1961-62 was of the opinion that inasmuch as the ITO had dealt with the income in question the fact that it was derived from a different source was of no materiality in so far as the jurisdiction of the Appellate Asst. Commr to dispose of the appeal was concerned. ( 3 ) ON going through the order of assessment passed by the ITO and the orders passed by the Appellate Asst, Commr. in appeal, I am of the view that the Appellate Asst, Commr had in fact traced the sum of Rs. 83,600 relating to the assessment vear 1960-61 and the sum of Rs. 1,46,867 relating to the assessment year 1961-62, to certain undisclosed sources and not to the business of the petitioner which was the only source with which the income Tax Officer was concerned. ( 4 ) THE question for consideration in these two writ petitions is whether it is permissible for the Appellate Asst. Commr while exercising his jurisdiction either under the 1922 Act or under the 1961 Act to add any amount of income which is traced to a source which is neither disclosed by the assessee nor dealt With by the ITO, while, disposing of the appeals. Commr while exercising his jurisdiction either under the 1922 Act or under the 1961 Act to add any amount of income which is traced to a source which is neither disclosed by the assessee nor dealt With by the ITO, while, disposing of the appeals. The relevant provisions of the two Acts which are in pari materiel are as follows : " Section 31 (3) of 1922 Act * * * * " " Section 251 (1) of 1961 Act * * * * " in Commr. of I. T. Bombay v. Shapoorji Pallonji Mistry, 44 ITR 891, the Supreme court observed that in an appeal filed by an assesses, the Appellate asst. Commr. had no power to, enhance the assessment by discovering a new source of income not mentioned in the return of the assessee or considered by the ITO in the order appealed against. Following the above decision, this Court in Vasudeva Setty v. Commr. of I. T. , 65 ITR. 172=1967 Kar. L. J. 69= (1967) 1 Mys. L. J. 510, held as follows :"our answer therefore tp the question is that the Tribunal was not right in taking the view that the Appellate Asst. Commr. in this case had the competence to alter the findings of the ITO to the effect that the cash credits were part of the business income into a finding that they were undisclosed items of income from undisclosed source and consequently to travel beyond the record of the appeals before him and alter in one appeal the assessment on the basis of facts and materials restricted to another appeal. " ( 5 ) THE facts pf the case in CIT. , Bombay v. Shapoorji (1) are briefly these; The assessee who was the respondent in the said case, had reserved on July, 20,1946, a sum of Rs. 40,000. In the proceedings for assessment for the assessment year 1946-47 this fact came to the notice of the ITO. Since the receipt fell within the accounting year relative, to the Assessment year 1947-48, the ITO ma,de a note that the question would however be considered again at the time of 1947-48 assessment. While passing the order of assessment in respect of the year 1947-48, the ITO overlooked the note made by him in the assessment order of the earlier year with the result that the said amount escaped assessment. While passing the order of assessment in respect of the year 1947-48, the ITO overlooked the note made by him in the assessment order of the earlier year with the result that the said amount escaped assessment. The assessee preferred an appeal to the Appellate Asst. Commr. against his- assssment for the year 1947-48. In that appeal, on the basis of a reference made by the ITO, the Appellate asst. Cpmmr. after issuing notice to the assessee assessed the sum of rs. 40,000 and included it in the original assessment. The matter ultimately reached the Supreme Court. The question before the Supreme Court was whether it was ppen to the Appellate Asst. Commr. to find new source of income not considered by the ITO and assess it under his pwers under S. 31 pf the 1922 Act, The Supreme Court negatived the said contention. While doing so it quoted with approval the decision of the Patna high Court in Jaganath Therani v. Commr. of I. T. , AIR 1925 Pat. 408, and a decision of the Madras High Court in Gajalakshitii Ginning Factory v. Commr. of i. T. , 22 ITR. 502, In the Patna case the assessee had three businesses at Purnea jalpaiguri and Calcutta. His income from Purnea only was assessed by the ito. On appeal by the assessee, the Appellate Asst. Commr. assessed him with regard tp the income from the other two businesses. The head of income was the same within S. 6 of 1922 Act, but the sources of income was different. The Patna High Court observed,"now this section relating to appeals is enacted for the benefit of the subject and also to the limited extent therein stated, for the benefit of the Crown. But the subject matter of the appeal is the assessment and the scope of the appeal must in my opinion be limited by the subject-matter. The Appellate Authority has np ppwer of travel beyond the subject-matter of the assessment and for all the reasons advanced by the appellant is in my opinion not entitled to assess new sources of income. ( 6 ) THE High Court of Madras in its decision observed. "of course it would not be ppen to the Appellate Asst. The Appellate Authority has np ppwer of travel beyond the subject-matter of the assessment and for all the reasons advanced by the appellant is in my opinion not entitled to assess new sources of income. ( 6 ) THE High Court of Madras in its decision observed. "of course it would not be ppen to the Appellate Asst. Commr, to introduce into the assessment new sources, as his power of enhancement should be 'restricted only to the income' which was the subject-matter of consideration for purposes of assessment by the Income Tax Officer". The Supreme Court rejected the contention urged on behalf of the cpmmr. of I. T. that the word 'assessment', meant the; ultimate amount which an assessee must pay regard being had to the charging section and his total income and that the words "enhance the assessment" were not confined to the assessment reached through a particular process, but should be extended to the amount which ought to have been computed if the true total income had been found. Even though the Supreme Court was of the opinion that such a view was also possible, it observed that it must not be overlooked that there were other provisions like Ss. 34 and 33b which allowed escaped income from new sources to be taxed after following a certain, procedure. It was also pf the view that if the ppwer to assess fresh sources of income was read into the provisions of S. 31, the assessee would be deprived of a finding by two Tribunals and one; right of appeal. Ultimately, it was of the view that there was ho good reason to reject the view which had held the field for nearly 37 years. In Vasudeva Setty's case (2) the above view of the Supreme Court was followed. ( 7 ) SRI S. R. Rajasekhara Murthy, learned Counsel for the revenue, however drew my attention to the following observations made by, this Court in Vasudeva Setty's case (2) at page 178 :"it is argued that the only question asked is whether the appellate power of the Appellate Asst Commr does not include the power of relating a given item to a source different from the source to which it had been related by the ITO. The argument, though prima facie attractive,is in our opinion wholly inapplicable to the fa,cts and circumstances of this case. The argument, though prima facie attractive,is in our opinion wholly inapplicable to the fa,cts and circumstances of this case. So long as a certain item of income had been considered and examined by an ITO from the point of view of its assessability and so long as the Appellate Asst. Commr. does not travel beyond the record of the year, there has never been any doubt as to his powers of re-doing the categorisation and bringing the assessment within the true description of the law. " ( 8 ) RELYING on the above observation, Sri Rajasekhara Murthy contended that since in this case the sums of Rs. 83,600 and Rs 1,82,887 had been dealt with by the ITO it was permissible for the Appellate Asst. Commr to frace them to a source different from the source to which they had been traced by the ito. On going through the judgment of this Court carefully, I find that the observations made by this Court which are extracted above, are slightly inconsistent with the conclusion reached by the Court in that decision and also the principle enunciated by the Supreme Court in CIT. , Bombay v. Shappoorji because in the concluding paragraph (quoted earlier), this court has held that the Appellate Asst. Commr had no competence to alter the findings of the ITO to the effect that the cash credits in question were part of the business income into a finding that they were undisclosed income from undisclosed source. ( 9 ) IT is also not possible to hold that the Supreme Court took a view different from the one expressed in CIT. , Bombay v. Shapoorji in Commr. of I. T. , (Cen), Calcutta v. Rai Bahadur Hardutroy Monlal Chamaria, 66 ITR. 443, after referring to the earlier decisions of the Supreme Court including cit v. Shapoorji, the Supreme Court held in 66 ITR 443 (5 ). "the principle that emerges as a result of the authorities of this court is that the Appellate Asst. Commr. has no jurisdiction, under s. 31 (3) of the Act to assess a source of income which has not been processed by the ITO and which is not disclosed either in the returns filed by thee assessee or in the assessment order and therefore the appellate, Asst. Commr. cannot travel beyond the subject-master of the assessment. Commr. has no jurisdiction, under s. 31 (3) of the Act to assess a source of income which has not been processed by the ITO and which is not disclosed either in the returns filed by thee assessee or in the assessment order and therefore the appellate, Asst. Commr. cannot travel beyond the subject-master of the assessment. In other words, the power of enhancement under s. 31 (3) of the Act is restricted to the subject-matter of assessment or the source of income which have been considered expressly or by clear implication by the ITO from the point of view of the taxability of the assesses,. " ( 10 ) LATER on it is observed by the Supreme Court-"as we have already stated it is not open to the Appellate Asst. Commr. to travel out side the records i. e , the return made by the assesses or the assessment order of the ITO with a view to find out new sources of income and the power of enhancement under S. 31 (3) is restricted to the sources of income which has been the subject-matter of consideration by the ITO from the point of view of taxability. "it is therefore, clear that the Supreme Court was of the view that the subjectmatter of assessment was the source of income but not the amount as such. In these cases it is seen that neither-expressly nor by clear implication the ITO had dealt with the undisclosed sources referred to by the appellate Asst. Commissioner. ( 11 ) IT was lastly argued by Sri Rajasekhara Murthy that the expressions 'income', and 'source, of income' are interchangeable and if a certain income has been dealt with by the ITO, it would be open to the Appellate Asst. Commr. to pass an order in respect of the said income also whether or not it was traceable to a source dealt with by the ITO. It is not possible to agreed with the above submission in view of the decision! in Commr. of I. T. , calcutta v. H. M. Chamaria In view of the decision of the Supreme, Court in Commr. of IT. , Bombay (1), I do not think that the revenue can derive any sustenance from the decision in Parameswara Oil Mill v. Commr. of IT, AP. , 85 ITR. 151, which is rendered withqut noticing the above decision of the Supreme Couurt. of IT. , Bombay (1), I do not think that the revenue can derive any sustenance from the decision in Parameswara Oil Mill v. Commr. of IT, AP. , 85 ITR. 151, which is rendered withqut noticing the above decision of the Supreme Couurt. It has however to be observed that the Andhra Pradesh High Court proceeded on the basis that in CIT v. Mcmillan and Co. , 33 ITR. 182, the Supreme Court had approved the decision in Narrondass Munordass v. CIT, 31 ITR. 909, rendered by the bombay High Court. But in CIT v. Shapoorji, the Supreme Court has observed at page 895 that the Supreme Court had not expressed its final opinion on the question in CIT v. Mcmillan and Co. It is apparent that the later decision of the Supreme Court was not brought to the notice of the Andhra Pradesh High Court. It is also to be noticed that in 66 ITR 44 the Supreme Court by implication has observed that 33 ITR 182, did not depart from the view expressed in 44 ITR 891. ( 12 ) ALTHOUGH the discussion so far made relates to the construction, of s. 31 of the 1922 Act, it has to be held that the position in law has not altered under the 1961 Act as the language of the relevant provsions in both the Acts is almost the same. In the result, these petitions succeed. The Commr. of IT is directed to modify the orders passed by him by deleting the sum of Rs. 83,600 from the order of assessment relating to the year 1960-61 and a, sum of Rs. 1,82,887 from the order in respect of the assessment year 1961-62. These petitions are accordingly allowed. No costs. --- *** --- .