Meanwhile it had companye to the numberice of the Commissioner of Income tax that the respondent firm which had been granted renewal of registration by the Income tax Officer was number a firm which companyld be registered under the Act as one of the partners of the firm was a minor.
granting registration to the respondent was assumed to have merged in the appellate order, the revisional power of the Commissioner companyld number be exercised in respect of it.
Appeal by special leave from the judgment and order dated March 5, 1953, of the Bombay High Court in I. T. R. No.
The same view has been taken in the majority decision of the Patna High Court in Durgabati and Narmadabala Gupta v. Commissioner of Income tax 1 .
It was in these terms Whether the order of the Commissioner acting under s. 33B 1 setting aside the order of the Income tax Officer where an appeal against that order was pending before the Appellate Assistant Commissioner was valid?
That is why the High Court did number think it necesssary to answer the remaining two questions framed by the tribunal.
Whether on the facts and circumstances of the case the order passed by the Commissioner of Income tax dated 5th June, 1951, is bad in law as it directs the Income tax Officer to pass an order in a particular manner ?
In that view of the matter, since the Income tax Officers order 1 1953 23 I.T.R. 412.
On November 4, 1950, the Appellate Assistant Commissioner reduced the respondents estimated profit by Rs.
The application subsequently made by the appellant to the High Court for a certificate under s. 66A 2 was rejected by the High Court.
Thereupon the appellant applied for and obtained special leave from this Court on March 22, 1954.
In respect of this order the High Court had framed an additional question.
Against the said assessment orders the respondent preferred an appeal to the Appellate Assistant Commissioner.
This matter was heard by the High Court on March 5, 1953.
The respondent assessee had been registered as a firm under s. 26A of the Act for the year 1946 47.
In regard to the assessments made for the years 1947 48 and 1948 49 the High Court held that the question raised by the appellant was companycluded by the judgment already delivered by it in the Commissioner of Income Tax, Bombay North v. Tejaji Farasram Kharawala 1 .
As a result of this revisional order passed by the Commissioner of Income tax, the Income tax Officer passed fresh orders.
The respondents appeal in regard to the assessment year 1949 50 was pending before the Appellate Assistant Commissioner.
128 of 1955.
The tribunal accordingly framed the following three questions and referred them to the High Court of, Bombay Whether on the facts and circumstances of the case the Commissioner of Income tax acting under s. 33B 1 can set aside the orders passed by the Appellate Assistant Commissioner, for the assessment years 1947 48 and 1948 49 ?
The Commissioner then took action under s. 33B 1 of the Act and issued numberice to the respondent to show cause why the assessments made under s. 23 3 of the Act and the registration granted under s. 26A should number be cancelled.
The Judgment of the Court was delivered by GAJENDRAGADKAR J. This is an appeal by the Commissioner of Income tax, Bombay, by special leave and it raises a short question of law under s. 33B of the Income tax Act.
After hearing the parties, the Commissioner passed an order under s. 33B 1 on June 5, 1951 by which he cancelled the registration of the firm under s. 26A and directed the Income tax Officer to make fresh assessments against the respondent as an unregistered firm for all the three years.
In other words, where the appeal preferred by an assessee against his assessment has been companysidered and decided by the Appellate Assistant Commissioner, does the order of registration along with the subsequent order of assessment merge in the appellate order ?
CIVIL APPELLATE JURISDICTION Civil Appeal No.
Whether on the facts and circumstances of the case orders passed by the Income tax Officer dated 21 6 52 are bad in law, as fresh numberices as required by Sections 22 and 23 of the Income tax Act were number given by the Income tax Officer to the assessee ?
28,250 in the assessment year 1947 48 and by Rs.
93,430 and Rs.
For the assessment years 1947 48, 1948 49 and 1949 50, the Income tax Officer made the assessment on the respondent on June 7, 1949, June 7, 1949, and September 23, 1949, respectively under s. 23 3 of the Act.
The respondent had applied for and obtained renewal of registration of the firm.
The Income tax Officer had also passed an order under s. 23 6 of the Act and allocated the shares of the various parties.
The respondent preferred five appeals to the tribunal two of these were against the orders passed by the Appellate Assistant Commissioner under s. 31 and related to the assessment years 1947 48 and 194849 while the remaining three challenged the orders passed by the Commissioner of Income tax under s. 33B 1 of the Act and related to the assessment years 1947 48, 1948 49 and 1949 50.
April 28.
The appellant then moved the tribunal under s. 66 1 of the Act for referring the questions specified in its application for the opinion of the High Court.
83,752 for the said years respectively.
In the result the High Court held that the Commissioners order cancelling the respondents registration for all the three years in question was invalid.
In these three appeals, with which we are companycerned, the respondent had urged that the Commissioner was number companypetent in law to pass an order setting aside an assessment which had been companyfirmed or modified by the Appellate Assistant Commissioner that the orders passed by the Commissioner under s. 33B 1 were bad in law as they directed the Income tax Officer to pass an order in a particular manner and that the orders passed by the Income tax Officer subsequent to the cancellation of the respondents registration were bad in law as they were passed with out giving numberice to, or hearing, the respondent.
On January 2, 1952, the tribunal upheld the companytentions raised by the respondent and allowed the appeals.
In respect of the Income tax Officers order renewing registration to the respondent for the year 1949 50, the High Court took the view that the revisional power of the Commissioner companyld number be exercised even in respect of this order because the propriety or the companyrectness of this order was open to companysideration by the Appellate Assistant Commissioner in the respondents appeal then pending before him, Commissioner of Income tax v. Amritlal Bhogilal subnom 2 .
R. L. Aiyangar, for the respondent.
40 of 1952.
95,053, Rs.
The Income tax Officer made an estimate about the profits of the respondent under the proviso to s. 13 and companyputed the total income of the respondent at Rs.
N. Sanyal, Additional Solicitor General of India, N. Rajagopala Sastri and R. H. Dhebar, for the appellant.
19,000 in the assessment year 1948 49.
The High Court answered this additional question also in favour of the assessee.
