TMI Blog1963 (2) TMI 55X X X X Extracts X X X X X X X X Extracts X X X X ..... f the income of the deceased Manmatha Nath to the extent of the estate inherited by the family from him. Manmatha Nath happened to be a partner of an unregistered firm called Messrs. Sen Bros. and Co. carrying on business at 15, College Square. The Income-tax Officer (respondent No. 1) in assessing the income of Manmatha Nath for the assessment years 1950-56 added to his personal income from house property, his 1/3 share of the income from the business of the said firm and charged tax accordingly. Since the business of the firm was in the hands of receivers, it was the receivers who were chargeable with the tax. The 1/3 share of the income of the firm could not be added to the personal income of Manmatha Nath, for the purposes of assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be refused on the ground of delay ? (b) is the application under article 226 maintainable ? (c) are the impugned orders without jurisdiction ? (d) have the principles of natural justice been violated by the impugned orders ? Point (a) : Annexure B is the assessment order of the Income-tax Officer dated March 26, 1953. Annexure D is the order of the Appellate Assistant Commissioner dated June 5, 1957, and annexure E is the order of the Commissioner dated February 5, 1960. This application under article 226, impugning the orders of June 5, 1957, and February 5, 1960, was presented on September 14, 1960. The order of the Commissioner being the final order, there has been a delay of over seven months from that order. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d operative. The question for determination is whether an application under article 226 lies against the order of the Commissioner in annexure E . The position has been complicated owing to legislative changes. Prior to 1941, the corresponding revisional power of the Commissioner, called review , was contained in section 33. Under that section, it was open to the Commissioner to make an order prejudicial to the assessee but the proviso to that section required that if the Commissioner proceeded to make a prejudicial order , he must give the assessee a reasonable opportunity of being heard. When there was such statutory requirement of hearing, it might very well have been contended that an application under article 226 would lie if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been violated because such expressions imply a determination on subjective satisfaction (cf. Virindar v. State of Punjab). I would respectfully agree with the decision of Sinha J. in the case already referred to and reiterated in Suganchand v. Commissioner of Income-tax, that a writ of certiorari does not lie against an order of the Commissioner under section 33A(2) of the Act. Point (d) : As stated above, the meaning of the expression such inquiry... as he thinks fit has to be construed keeping in view the deliberate omission by the legislature of the pre-existing requirement of a reasonable opportunity of hearing being offered. The reason of this is that the legislature would not allow an order under section 33A(2) to be deemed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pliedly (vide Radheshyam v. State of M. P., and Virindar v. State of Punjab). Hence, even though admittedly, the Commissioner did not hear the petitioner, the petitioner cannot have any relief in this application on that ground. Point (c) : The case of the petitioner on this point is that the addition of his income from the share in the business of the firm, Sen Bros., which has been made for the purpose of section 16(1)(a) is without jurisdiction because the assessment on the firm was not made in compliance with the requirements of section 14(2)(a) so that the very basis for the application of section 16(1)(a) was gone. Under section 16(1)(a) any income which has been exempted from personal taxation, inter alia, under section 14(2), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were assessed in respect of the income of the firm and not on account of any personal income of such receivers and that they paid the tax so assessed. This is sufficient to attract the operation of section 16(1)(a) for the purpose of determining the rate of taxation, because the petitioner has been exempted from the liability to pay the tax on account of his share in the firm under section 14(2). The petitioners grievance is that the receiver or receivers were not properly described in the assessment proceedings as representing the firm, but sometimes as an individual and sometimes as an association of persons. But, as stated already, the question for the application of section 14(2)(a) is whether the tax has been paid by the receiver ..... X X X X Extracts X X X X X X X X Extracts X X X X
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