Yashoda Nandan, J. - (1.)BY means of this writ petition, the ITO, Sita-pur and the Commissioner of Income-tax, Lucknow-I, Lucknow, pray for the issue of a writ, order or direction in the nature of certiorari for quashing an order dated 30th September, 1974, passed by the Delhi Bench (B) of the Income-tax Appellate Tribunal, Delhi, in a miscellaneous application filed by opposite party No. 1 under Section 35 of the Indian I.T. Act, 1922. The petitioners have further prayed for such other and further orders as this court may, in the circumstances of the case, deem just and proper.
(2.)THE material facts leading up to this petition are that opposite party No. 1, M/s. Gargidin Jwala Prasad, a registered partnership firm, hereinafter referred to as the assessee, for the assessment year 1948-49 filed a return showing a loss of Rs. 17,131. Petitioner No. 1 completed the assessment on a net loss of Rs. 8,382. As a result of the Voluntary Capital Disclosure Scheme launched by the Government of India, the assessee disclosed suppressed income to the tune of Rs. 45,000. After some negotiations with petitioner No. 1, the assessee increased the disclosure to Rs. 50,000. Petitioner No. 1 not being satisfied with the disclosure made by the assessee made enquiries and then informed the assessee that the concealed income was much more. THE assessee disagreed. After investigating into the matter, the ITO ultimately made the assessment by holding that the concealed income for the year was Rs. 85,937. THE assessee appealed. THE AAC held that the information possessed by the ITO against the assessee had not been disclosed to it and no opportunity had been provided to it to rebut the same. In the view taken by him, the AAC remanded the matter to the ITO for a further report. After having entered into a series of correspondence with the assessee, the ITO submitted a report consequent on the order of remand. THE AAC ultimately dismissed the appeal of the assessee. THE assessee appealed to the Tribunal at Allahabad, but failed. Ultimately, at the instance of the assessee, a Bench of this court directed the Tribunal to draw up a statement of the case and refer to it the questions of law for the opinion of this court. In consequence of the order of this court, the Tribunal submitted the following questions of law for the opinion of this court:
1. Whether the assessee got reasonable opportunity to meet the case that the department had set up against it.

2. Whether there was any material before the Tribunal for arriving at its conclusion that the concealed income of the assessee from black market transactions amounted to Rs. 85,937 ?"

The reference was heard by a Bench of this court consisting of Satish Chandra J. (as he then was) and A. Banerji J. The Bench answered the first question in the negative, in favour of the assessee and against the department and further held that in view of answer to question No. 1, question No. 2 had become one of academic importance only and was consequently left unanswered. On receipt of the order of this court, dated 8th August, 1973, in Income-tax Reference No. 174 of 1971 (Gargi Din Jwala Prasad v. CIT [1974] 96 ITR 97) the Allahabad Bench of the Tribunal consisting of Sarvashri T. P. Sugla and O. V. Subramanian, after hearing the parties, on the 12th December, 1973, under Section 66(5) of the Act purporting to act in conformity with the opinion of this court, set aside the assessment order and remanded the matter to the ITO for a fresh assessment according to law. Undisputedly thereafter the assessee filed in this court Civil Misc. Writ No. 517 of 1974, M/s. Gargi Din Jwala Prasad v. Income-tax Appellate Tribunal, on the 21st January, 1974. The material prayers made in the petition were for a writ of certiorari to quash the notice dated 5th January, 1952, the assessment order dated 14th February, 1953, the Tribunal's order dated 12th December, 1973, the memo of the ITO dated 3rd January, 1974, and the notice dated 3rd January, 1974, issued by the ITO under Section 143(2) of Act No. 42 of 1970. A prayer was further made for a writ of prohibition and/or mandamus directing the ITO, Sitapur, not to make any reassessment for the year 1948-49 and to refund the tax collected from the partners of the petitioner-firm by reassessment on the basis of the assessment order dated 14th February, 1953. One of the grounds taken in the petition was that the Tribunal's order dated 12th December, 1973, was mala fide and against the judgment of this court dated 8th August, 1973 (Gargi Din Jwala Prasad v. CIT [1974] 96 ITR 97). The petition was dismissed in limine in the following terms :

"We find no substance in this petition. It is accordingly rejected."

The factswhich further emerge from Civil Misc. Writ No. 517 of 1974 and the counter-affidavits filed on behalf of, opposite party No. 2 are that the assessee had made an application dated 8th January, 1972, addressed to the Secretary, Government of India, Ministry of Law and Justice, New Delhi, requesting for the grant of Government sanction under Section 197 of the Cr. PC read with Article 367(1) of the Constitution for prosecution of Sri T. D. Sugla, Judicial Member of the Income-tax Appellate Tribunal, Allahabad, under Section 219 of the Indian Penal Code. The request was turned down on the 23rd May, 1972, by the Government.

(3.)AFTER the dismissal of Civil Misc. Writ No. 517 of 1974, by this court on the 21st January, 1974, the assessee on the 25th February, 1974, filed an application under Section 35 of the Act for the rectification of an alleged mistake apparent on the face of the record in the order dated 12th December, 1973, before the Tribunal's Bench at Allahabad. On the 26th February, 1974, the assessee made an application before the President, Income-tax Appellate Tribunal, Bombay, for the transfer of all the proceedings for rectification of the order of the Allahabad Bench of the Income-tax Appellate Tribunal on the ground that it would not get justice from the Tribunal at Allahabad of which Sri T. D. Sugla happened to be a member. The prayer was that the assessee's application under Section 35 of the Act may be decided by the Income-tax Appellate Tribunal at Delhi. The President of the Tribunal passed an order under r. 4 of the Income-tax (Appellate Tribunal) Rules, 1963, directing transfer of the assessee's application for disposal to the Delhi Benches of the Tribunal. The assessee's application under Section 35 of the Act was heard by a Delhi Bench of the Tribunal consisting of Sarvashri G. Krishnamurthy and B.L. Maurya and was allowed by an order dated 30th September, 1974. The Delhi Bench of the Tribunal seems to have taken the view that the earlier order of the Bench of the Tribunal at Allahabad under Section 66(5) of the Act was not in conformity with the opinion of this court and passed an order, the relevant part of which is in the following terms:
"In view of the answer to question No. 1 wherein their Lordships have held that the proceedings were vitiated by violation of the principles of natural justice, we hereby hold that the entire assessment proceedings are quashed and nothing survives for consideration."

The order of the Delhi Bench was served, according to the petition, on the second petitioner on the 16th October, 1974, and on the first petitioner on the 31st October, 1974. Aggrieved by the order passed by the Delhi Bench of the Tribunal, the petitioners presented this petition in this court on the 15th January, 1975.