A.C.Sen, J. - (1.) The present appeal is directed against an order -dated 10th of February, 1961 passed by Hon'ble Mr. Justice D. N. Sinha on an application by the appellant under Article 228 of the Constitution asking for a Rule on the respondent to show cause why a writ in the nature of certiorari should not be issued, commanding the said respondent to certify and return to it is Court the records relating to the order complained of. Sinha, J. by the sail order dated 10th of February, 1961 discharged the Rule issued by Mitter, J. on the said application under Article 229 on the 24th of March, 1960.
(2.) The facts of the case are as follows: The appellant before us is a firm carrying on business under the name of Sugan Chand Saraogi at 68A, Nalini Sett Road, Calcutta. From the deed of partner. ship being annexure A to the original petition under Article 226 it transpires that the business of the partnership is to act as brokers in jute only, but the partners may by mutual consent embark upon any new line of business from time to time as they may agree upon on the same terms of partnership as made in the deed of partnership. The firm has since assessment year 1950/51 been assessed to income-tax as unregistered firm. In respect of the years 1951/52 and 1952/33 the appellant firm filed appeals against the assessment and by an order dated 23rd July, 1958 the Appellate Assistant Commissioner remanded the matter to the Income-tax Officer for enquiry and report.
(3.) In respect of the assessment year 1953/54 the appellant firm failed to comply with the requisition contained in a notice under Section 22 (2) of the Income-tax Act and also in a notice under Section 22 (4) of the said Act, whereupon an assessment was made under Section 23(4) on an estimated income of Rs. 3,00,000. On June 14. 1958 the appellant applied under Section 33A of the Indian Income-tax Act to the Commissioner of Income-tax, Calcutta praying that the assessment made against the firm might be cancelled and the case remanded to the Income-tax Officer for fresh assessment. Paragraphs 3, 4 & 5 of the said petition under Section 33A are quoted below: "3. That due to unavoidable circumstances, all the partners were out of Calcutta for about three months from June 1957 and as such could not comply with notices under Section 22 (4) of the learned Income-tax Officer. 4. That the petitioner requested their authorised representative Sri B. Mukherjee to appear from time to time before the Income-Tax Officer and to take time for submission of return, which however, he also failed to do so on account of his serious illness of Coronary Thrombosis of Heart and High Blood Pressure, This fact was conveyed to the petitioners when they came back from Rajasthan and this was after the assessment order under Section 23 (4) was passed. 5. That in making the said assessment the Learned Income-Tax Officer failed to exercise his judicial mind and to consider the income of previous years, for comparison. The Learned Income-Tax Officer proceeds to assess the petitioners on a very high scale of income (Rs. 3,00,000). This estimate appears to be very hard and heavy without any basis whatsoever." In paragraph 6 of the said petition the appellant explained why it was not possible for the appellant either to make an application under Section 27 of the Indian Income-tax Act or to prefer an appeal to the Appellate Assistant Commissioner. In paragraph 8 of the said petition it is stated that the appellant is submitting the return with profit and loss account and the balance sheet and also application for registration and renewal for partnership under Section 26A to the learned Income-Tax Officer. There is nothing on record to show whether and if so when such returns and applications were filed before the Income-Tax Officer. The appellant prayed in the said application not only for the cancellation of the assessment, but also for the condonation of the delay for submitting the return and the application under Section 26A.;