JUDGMENT

TULZAPURKAR, J.:—These two appeals by certificate raise an important question as regards the proper construction of S. 33-B of the Income-tax Act, 1922 with particular bearing on the scope of sub-sec. (4) thereof and the effect of sub-sec. (2) (b) on the sub-sec. (4).

2. The facts giving rise to the aforesaid question may briefly be stated: The assessment years involved are 1957-58 and 1958-59 corresponding to the accounting years ending March 31, 1957 and March 31, 1958 respectively. On or about August 5, 1960 the respondent assessee submitted voluntary returns, inter alia for the said two assessment years along with a declaration dated August 8, 1960. The assessment for these years were completed on August 12, 1960 by the Income-tax Officer, E Ward, District II (1) Calcutta on total incomes of Rupees 7,000 and Rs. 7,500 respectively, the same having been made in the status of unregistered firm consisting of three partners, namely, Asha Devi Vaid, Santosh Devi Vaid and Sugni Devi Vaid with equal shares.

3. On August 2, 1962, the Commissioner of Income-tax issued a notice to show cause why the said assessments should not be cancelled under S. 33-B of the Act as he felt that the completed assessments were erroneous as being pre-judicial to the interest of the revenue and that the Income-tax Officer, B Ward, District II (1) Calcutta had no territorial jurisdiction over the case of the assessee. The notice was served on the assessee on August 3, 1962, and the hearing was fixed by the Commissioner for August 6, 1962. On the ground that none appeared and that there was no application for adjournment, the Commissioner passed his order under S. 33-B ex parte on that date. By his said order the Commissioner cancelled the assessments made by the Income-tax Officer on August 12, 1960 on three grounds: (a) that some of the partners were minors and were not competent to enter into any partnership agreement with the result that the status of unregistered firm assigned to the assessee by the Income-tax Officer was clearly wrong and as such the assessments deserved to be cancelled, (b) that the books of account were unreliable and they were not properly examined by the Income-tax Officer with the result that the assessments made were prejudicial to the interests of the revenue and (c) that the Income-tax Officer concerned had no territorial jurisdiction over the case which fell within the jurisdiction of Income-tax Officer, District III (II) Calcutta, and directed the I.T.O. having proper jurisdiction to make fresh assessments after examining the record of the assessee in accordance with law.

4. In the appeals preferred to the Appellate Tribunal under S. 33-B (3) the respondent-assessee challenged the said order of the Commissioner on various grounds. The Tribunal negativing all other contentions of the respondent-assessee, came to the conclusion that on merits the facts justified the assumption of jurisdiction under S. 33-B by the Commissioner but held that the Commissioner had not conformed to the requirements of natural justice by putting to the respondent assessee what case it had to meet and by giving due opportunity for explaining the same. The Tribunal noted that the Commissioner had disposed of the matter at 11-30 A.M. when none appeared on behalf of the respondent-assessee while the notice served upon the latter permitted filing of objections at any time during the course of August 6, 1962 and objections had been filed by the respondent-assessee later in the day. The Tribunal, therefore, allowed the appeals, vacated the Commissioners order dated August 6, 1962 and remanded the case to him with the direction to dispose it of afresh after giving due opportunity to the respondent-assessee.

5. Feeling aggrieved by the Tribunals aforesaid order dated July 5, 1965 the respondent sought to refer a set of six questions of law said to arise out of the said order to the Calcutta High Court but the Tribunal referred the following two ques