The Commissioner of Income-tax has jurisdiction to cancel the registration of a firm under section 33B of the Income-tax Act, 1922, even if the order of registration has been confirmed by the Appellate Assistant Commissioner.

P.B.GAJENDRAGADKAR, J.

(1) THIS is an appeal by the Commissioner of Income-tax, Bombay, by special leave and it raises a short question of law under s. 33B of the Income-tax Act. The respondent assessee had been registered as a firm under s. 26A of the Act for the year 1946-47. For the assessment years 1947-48, 1948-49 and 1949-50, the Income-tax Officer made the assessment on the respondent on 7/06/1949, June 7, 1949, and 23/09/1949, respectively under s. 23(3) of the Act. The Income-tax Officer made an estimate about the profits of the respondent under the proviso to s. 13 and computed the total income of the respondent at Rs. 95,053.00, Rs. 93,430.00 and Rs. 83,752.00 for the said years respectively. The respondent had applied for and obtained renewal of registration of the firm. The Income-tax Officer had also passed an order under s. 23(6) of the Act and allocated the shares of the various parties.

(2) AGAINST the said assessment orders the respondent preferred an appeal to the Appellate Assistant Commissioner. On 4/11/1950, the Appellate Assistant Commissioner reduced the respondents estimated profit by Rs. 28,250.00 in the assessment year 1947-48 and by Rs. 19,000.00 in the assessment year 1948-49. The respondents appeal in regard to the assessment year 1949-50 was pending before the Appellate Assistant Commissioner.

(3) MEANWHILE it had come to the notice of the Commissioner of Income-tax that the respondent firm which had been granted renewal of registration by the Income-tax Officer was not a firm which could be registered under the Act as one of the partners of the firm was a minor. The Commissioner then took action under s. 33B(1) of the Act and issued notice to the respondent to show cause why the assessments made under s. 23(3) of the Act and the registration granted under s. 26A should not be cancelled. After hearing the parties, the Commissioner passed an order under s. 33B(1) on 5/06/1951 by which he cancelled the registration of the firm under s. 26A and directed the Income-tax Officer to make fresh assessments against the respondent as an unregistered firm for all the three years. As a result of this revisional order passed by the Commissioner of Income-tax, the Incometax Officer passed fresh orders.

(4) THE respondent preferred five appeals to the tribunal; two of these were against the orders passed by the Appellate Assistant Commissioner under S. 31 and related to the assessment years 1947-48 and 1948-49; while the remaining three challenged the orders passed by the Commissioner of Income-tax under S. 33B(1) of the Act and related to the assessment years 1947-48, 1948-49 and 1949-50. In these three appeals, with which we are concerned, the respondent had urged that the Commissioner was not competent in law to pass an order setting aside an assessment which had been confirmed or modified by the Appellate Assistant Commissioner; that the orders passed by the Commissioner under S. 33B(1) were bad in law as they directed the Income-tax Officer to pass an order in a particular manner and that the orders passed by the Income-tax Officer subsequent to the cancellation of the respondents registration were had in law as they were passed without giving notice to, or hearing, the respondent. On January 2, 1952, the Tribunal upheld the contentions raised by the respondent and allowed the appeals.

(5) THE appellant then moved the tribunal under S. 66(1) of the Act for referring the questions specified in its application for the opinion of the High Court. The tribunal accordingly framed the following three questions and referred them to the High Court of Bombay:

"1. Whether on the facts and circumstances of the case the Commissioner of Income-tax acting under S.33B(1) can set aside the orders passed by the Appellate Assistant Commissioner, for the assessment years 1947-48 and 1948-49?

2. Whether on the facts and circumstances of the case the order passed by the Commissioner of