G. Mehrotra, J. - (1.) THE petitioner Debidutta Agarwalla has by means of this petition under Art 226 of the Constitution challenged the validity of the order passed by the Commissioner of Income -tax, Assam, Shillong, dated the 9th August, 1961.
(2.) THE facts relevant for disposal of the petition are that the firm of M/s. Gangbisan Motilal of Hojai was dissolved on 2442 -1956. For the assessment years 1953 -54 and 1954 -55 the Income -tax Officer allowed certain refund to the firm of M/s Gangbisan Motilal of Hojal. After the refund was allowed, the amount was withdrawn by three of the partners of the firm, it should be, pointed out that after the dissolution of the old firm, which had four partners, a new firm was constituted with three of the old partners. Debidutta Agarwalla was not a partner in the new firm. The amount was refunded to the three partners of the new firm. Debidutta Agarwalla then applied to the Income -tax Officer for the correction of the order of refund on the ground that under the agreement between the partners of the dissolved firm, he was entitled to his share in the refunded amount, but the amount was by mistake paid to the three partners of the old dissolved firm. The Income -tax Officer, after issuing notices to the partners of the new firm, held that the refund was made available to the firm as a result of effect given to the order of the Appellate Assistant Commissioner, but through oversight allocation of the refund due was not made according to the shares of the partners and the entire sum was paid to the partners of the new firm. He then proceeded to allocate the refund amount to each of the partners of the old firm and held that Debidutta Agarwalla was entitled to a certain share in the total amount ordered to be refunded. He further directed the new firm to refund the said amount and held Debidutta Agarwalla to be entitled to receive that amount. Thereafter, the Department informed Debidutta Agarwalla that as against his Income -tax dues for the year 1949 -50, this amount was adjusted. The new firm then made an application before the Income -tax Commissioner under Sec. 33 -A for setting aside the order of the Income -tax Officer by which he corrected his previous order In the exercise of his powers under Sec. 35 of the Income -tax Act The Income -tax Commissioner held that as the firm was not a registered firm, no allocation could be made and thus the Income -tax Officer was not right in correcting his previous order and making allocation of the refund amount between the partners of the old firm. By this petition the order of the Commissioner has been challenged. It is also urged that consequent upon the order of the Commissioner in revision, the Income -tax Officer informed the petitioner that the adjustment order previously passed was cancelled, and he was asked to pay the balance of the taxes due from him for the year 1949 -50. In fact, notice has been issued to him to show cause why penalty should not be imposed for his failure to pay the taxes due for the year 1949 -50. This order has also been challenged by the petitioner.
(3.) THE validity of all these orders depends upon the validity of the order passed by the Commissioner. Preliminary objections have been raised both by Opposite Party No. 3 and the Department's counsel. On behalf of Opposite Party No. 3 it is contended that as the order related to two assessment years, one petition could rot be filed. On behalf of the Department it is contended that as the order passed by the Commissioner in revision was an administrative order, this Court under Art 226 of the Constitution will not interfere with that order.;