Manohar Lall, J.The circumstances in which this Court referred the case back to the Appellate Tribunal for findings of fact on the points enumerated in that order are clearly set out in the order dated 14th December 1944. In that order all the relevant facts have been clearly stated and it is unnecessary to state the facts over again.

2. It has now been found : (1) that the partnership deed of 30th October 1940 is a genuine document and evidences real partnership; (2) that the business which is now sought to be assessed was, in fact, charged under the provisions of the Income Tax Act, VII of 1918 ; and (3) that the business which is now sought to be assessed is identical with the business which was carried on by the deceased Kassam Manji in 1926.

3. In my opinion, on these findings it follows that the terms of Section 25(4), Income Tax Act inserted by Section 30 of Act VII of 1939 apply to the assessment under consideration.

4. The learned Standing Counsel, however contended that the findings of fact submitted by the Appellate Tribunal lead to the inference in law that there has not been a complete succession to the business which was being carried on by the deceased Kassam Manji in and alter 1926, and he also argues that the whole of the business which had been taxed under the Act of 1918 did not come into the hands of Kassam in 1926. The learned Standing Counsel cited a number of cases in support of his contention and in particular he relied upon the case of The Commissioner of Income Tax Burma v. S. Mansookh Lal Zaveri AIR 1937 Rang. 102 . and The Commissioner of Income Tax Burma v. A.L.V. R.P. Firm AIR 1940 Ran. 281 .). Mr. Mazumdar, appearing on behalf of the assessee, cited a number of cases in answer to this contention and contended that the question of the identity of the business is a question of fact: see Alexander Ferguson & Co. (1898) 4 TC. 36 and Commissioner of Income tax Bombay v. Naraindas & Co AIR 1939 Sin 318.

5. In my opinion, it is unnecessary to consider the case law because on the facts found in this case there is no room for the contention advanced by the learned Standing Counsel. I am reading from page 4 of the finding of the Appellate Tribunal:

It is true that before the partnership of 1940 came into existence some of the assets and liabilities of the business were retained by Kassam Manji. It is also true that fresh capital was introduced by the sons. But this fact does not, in our opinion appear to be very material. The fact remains, as the books show, that the firm took over the business as a going concern The same business is carried on at the same places with this little difference that fresh capital was introduced in 1940. In a running business, it is not uncommon to find that capital is introduced from time to time by the owners. This does not necessarily imply that the identity of the business is changed It is important to note at this stage that in connection with the assessment year 1943-44 the legal representatives of Kassam Manji claimed certain loss sustained by the assesee by reason of the fact that the outstandings which had taken over could not be recovered and the debts had become bad. The claim was disallowed and the reason given by the Income Tax Officer was to use his own words, as follows; Assessee was, at one time the sole owner of the business at Chauliaganj, Collage Bazar, Neulpur and Calcutta. On 9th December 1940, he transferred all the businesses as going concern to a firm styled Kassam Manji and Co. and retained to himself the sundry debtors and creditors of Neulpur, Mill and Head Office. No active business has been carried on by the assessee since 9th December 1940 and he is only collecting the dues from the debtors. Since assessee is not carrying on any business but is only realising the capital assets, the expenses of realisation and the bad debts are clearly capital losses and hence inadmissible.

After this finding, the Appellate Tribunal observed that the view taken by the Department in connection with the assessment year, 1943-44 appeared to be correct and there was no material which should warrant the conclusion that the identity of the new business was distinct and separate from the business carried on by Kassam Manji in and after 1926, and accordingly they held that the business which is sought to be assessed is identical with the business which was carried on by Kassam Manji in 1926.

6. I cannot understand how the learned Standing Counsel could ask us to hold that this finding is not a finding of fact and that we must disregard this finding and hold that it means that the partnership in 1940 succeeded to a portion of the business which was carried on by Kassam Manji in and from 1926. The learned Standing Counsel also sought to urge that the entire business which was assessed under the Act of 1918 did not pass to Kassam Manji in 1926 but on disruption it had gone to various members of the family. This is a new question of fact, and at the time we heard the reference on the last occasion this question was never raised on behalf of the Department. If it had been raised, we would have asked for a finding on this question of fact also. In my opinion, it is not open to the learned Standing Counsel to raise this new question of fact at this late stage.

7. For the reasons given above, the answer to the question is that the terms of Section 25(4) must be applied to the assessment in the present case. As the assessee has succeeded, he is entitled to the costs of the hearing in this Court which in the circumstances I would fix at Rs. 400 to be paid by the Commissioner.

Agarwala Ag. C.J.

8. I agree.