- (1.) THIS is a writ petition under article 226 of the Constitution.
(2.) THE prayers contained in this petition are that in the order of the Appellate Assistant Commissioner of Income-tax, dated November 16, 1955, in Appeals Nos. 65/101, 66/103, 69/105 and 60/102, the following words may be deleted provided the application for registration is in order. THEre is a further prayer that a writ of certiorari may be issued quashing the order dated January 13, 1956, passed by the Income-tax Officer, Azamgarh, and the order dated January 21, 1957, passed in appeals by the Appellate Assistant Commissioner of Income-tax, Varanasi, refusing registration and renewal of registration of the firm of which the petitioner is a partner for the years, 1950-51, 1951-52, 1952-53, 1953-54 and 1955-56. The facts giving rise to the petition are not in controversy because no counter-affidavit has been filed on behalf of the respondents. The facts are that under an instrument of partnership dated December 19, 1949, the firm came into existence and on October 9, 1953, an application for registration under section 26A for the year 1950-51 was made and applications were also made for renewal of registration for the years, 1951-52, 1952-53 and 1953-54. On August 19, 1954, the applications were rejected by the Income-tax Officer on the ground that the firm was not genuine. It may only be noted that the applications were duly entertained and the Income-tax Officer made no attempt to go into any other question and disposed of the applications only on the ground whether the firm was genuine or not. The petitioner filed appeals before the Appellate Assistant Commissioner and the appeals were allowed by order dated November 16, 1955. In the appeals it was held by the Appellate Assistant Commissioner that the finding of the Income-tax Officer that the firm was not correct and registration was to be granted to the firm provided that the application for registration is in order. The last portion of the order which has been mentioned by me above within inverted commas has been objected to in this petition on the ground that under section 31(3)(c) the power of the Appellate Assistant Commissioner in appeal against an order under section 26A, where the order was one of the refusal of registration, was confined to cancel it and direct the Income-tax Officer to register the firm and did not extend beyond cancelling the order of rejection and giving a direction to the Income-tax Officer to register the firm, to require him further to examine the applications and so find if they were in order.
(3.) AGAINST this order of the Appellate Assistant Commissioner, the Income-tax Officer went up in appeal to the Tribunal but the appeal was dismissed by the Tribunal on December 5, 1956. Meanwhile, the Income-tax Officer rejected the applications under section 26A on January 13, 1956, this time on the ground that the application for 1950-51 which was the application had been made beyond time. The applications for the other years which were applications for renewal of registration were rejected on the ground that, as the registration had been refused for 1950-51, there was nothing of which renewal could be granted in the subsequent years. In paragraph 13 of the petitioners affidavit, it has been stated that the order dated January 13, 1956, was passed by the Income-tax Officer without issuing a notice to the assessee of his intention to refuse registration on the entirely new ground of delay in filing the application or affording the assessee an opportunity of showing cause against such delay. Aggrieved by this order the petitioner filed appeals before the Appellate assistant Commissioner but the appeals were dismissed by that officer on January 21, 1957. Information of the order of the Appellate Assistant Commissioner rejecting the petitioners appeal was received by the petitioner on February 13, 1957. Thereafter, this writ petition was filed for the reliefs which have already been stated in the beginning of this judgment. Learned counsel for the petitioner has raised the following points before me : first, that the direction contained in the order of the Appellate Assistant Commissioner, dated November 16, 1955, that registration was to be granted if the applications were in order was beyond his powers under section 31(3)(c) of the Income-tax Act.;