INDUSTRIAL STORES AND AGENCY CO Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) THIS is a reference under section 66(1) of the Indian Income-tax Act at the instance of the assessee. The assessee, M/s. Industrial Stores and Agency Co., Dibrugarh, was assessed for the assessment year 1948-49 in the status of an unregistered firm. The assessment order passed by the Income-tax Officer was dated February 26, 1953. Against that order of assessment, while an appeal was pending before the Appellate Assistant Commissioner, the Commissioner of Income-tax passed an order on February 13, 1954, purporting to be one under section 33B of the Income-tax Act whereby the order of assessment as passed by the Income-tax Officer was set aside and he was directed to make a fresh assessment after applying the provisions of section 23(5)(b) so as to charge the partners direct in respect of their shares of income. The Appellate Assistant Commissioner finally disposed of the appeal a little later, on July 12, 1954. An appeal was taken before the Income-tax Tribunal against the order of the Commissioner passed on February 13, 1954, and the same was dismissed by the order of the Tribunal dated November 24, 1958.

(2.) THREE points were taken before the Appellate Tribunal for the purpose of reference under section 66(1) and the Tribunal formulated the following point for out consideration. The reference runs as follows :

(3.) IN regard to the first branch of the contention raised by the Learned Advocate-General, we do not think it admits of further consideration after the decision of the Supreme Court referred to earlier where it has been held that the Commissioner is competent to pass an order under section 33B whenever he considers that it has been erroneously passed and is prejudicial to the revenue, even while an appeal was pending from the order of assessment.