The revisional jurisdiction under section 264 of the Income-tax Act is a judicial one, but it does not necessarily require a personal hearing in every case.

A. D. V. REDDY, J.

( 1 ) THIS is a petition under Article 226 of the Constitution of india, for the issue of a writ or other appropriate order, to quash the order of dismissal passed on the three revision petitions filed by the petitioner before the Commissioner of Income-tax.

( 2 ) THE petitioner is a firm carrying on its business in bus transport and lorry services. It is contended that after the partition between Sri P. Venkatakrishnayya Naidu and his three sons on 15th december, 1957 the erstwhile co-perceners formed a partnership with effect from 16th December, 1957 and carried on transport and lorry business in the name of the assessee and as the registration of the firm was refused by both the Income-tax officer and the Appellate Assistant Commissioner, they went on, appeal to the tribunal, which decided in their favour and this was confirmed by the High court and thereafter registration was granted for the years 1962-63 and 1964- 65 but the Income-tax Officer making best judgment assessments under section 144 of the Income-tax Act of 1961 for the years 1965-66, 1966-67 and 1967-68 also refused registration of the firm under section 185 (5) of the Income-tax Act of 1961, that the revisions preferred before the Commissioner of Income-tax for the three years had also been dismissed without giving an opportunity to the assessee of being heard and hence this petition.

( 3 ) IT is contended that the revisional jurisdiction under section 264 of the income-tax Act is a judicial one and the Commissioner should have given the assessee an opportunity of being heard before disposing of the petitions. In the counter filed by the Department, it is contended that the assessee had not filed any returns of income or declarations required under section 184- (7) of the actfor the three assessment years 1965-66, 1966-67 and 1967-68 until 6th March, 1968 and as the returns were not filed, the Income-tax Officer completed the assessment ex parte under section 144 of the Act, treating the status of the assessee-firm as an unregistered firm, that the assessee did not ask for a hearing, nor did it file any written explanation and section 264 of the Act does not provide for giving an opportunity for hearing and as such the prvosions are not contravened, that the Income-tax Officer had no other option except to treat the firm as unregistered in the absence of declarations under section 184 (7) of the Act.

( 4 ) FOR his contention that not giving an opportunity to the assessee of being heard before the disposal of the petitions vitiates the order, the learned Counsel for the petitioner assessee has relied on the decisions in S. K. Veeraraghavan v. Commisioner of Income-tax (1969) 71 I. T. R. . 823 of the Madras High Court and Dwaraknath v. Income-tax officer, (1965) 571. T. R. 349 of the Supreme Court. The Madras case was one relating to disallowance of certain amounts claimed as deductions from the taxable income and the Commissioner of Income-tax in revision also, under section 33-A (2) of the Income-tax Act of 1922 rejected the claim, and it was held that not giving an opportunity to the assessee of being heard vitiates the order. Relying on the decision in the Supreme Court case dwarak Nath v. Income-tax Officer, (1965) 571. T. R. 349 it was stated: "dwaarak Nath v. Income-tax Officer, (1965) 571. T. R. 349 held that prima facie the jurisdiction conferred under the section is a judicial one, that the order brought before the commissioner under that provision affects the rights of the assessee and that it was, therefore, implicit in revisional jurisdiction that the revisional authority should give an opportunity to the parties affected to put forward their case in the manner prescribed".

( 5 ) THE above observation takes for granted that the giving of an opportunity to the assessee is incumbent on the part of the Commissioner and any order passed without that opportunity being given cannot be upheld. But, the remarks made in Dwarak Nath v. Inc

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