DWARKA NATH Vs. INCOME TAX OFFICER SPECIAL CIRCLE D WARD KANPUR

JUDGEMENT

(1.) The facts leading up to this appeal may briefly be narrated. Gujarat Cotton Mills Co. Ltd., hereinafter called the Company, is a limited company having its registered office at Ahmedabad. In the year 1938 the Company appointed Messrs, Pira Maj Girdhar Lal and Co. hereinafter called the Agency Firm, as its Managing Agency. On February 28, 1938, a formal agreement was entered into between the Company and the Agency Firm. The said Agency Firm was formed under an instrument of partnership, dated February 26, 1938, with II partners - 3 of them are compendiously described as the "Bombay Group" and the remaining 8 of them as the "Kanpur Group". With certain variations in the constitution of the Agency Firm, the said firm functioned as the Managing Agents of the Company till September, 1946. In September 1946 the shareholding of the partners of the Agency Firm in the Company was as follows:

(2.) Mr. A. V. Viswanatha Sastri, learned counsel for the appellant, contended that the affidavit filed in support of the petition was in accordance with law, and that, even if there were any defects, the Court should have given in opportunity to the appellant to rectify them; and that the High Court should have held that the revision against the order of the Income-tax Officer to the Commissioner was maintainable under S. 33A of the Act; as the appeal against that order to the Appellate Assistant Commissioner was not maintainable and that it should have directed the Commissioner to entertain the revision and dispose of it in accordance with law directing the Income-tax Officer to issue a notice of demand under S. 29 of the Income-tax Act. He further contended that the High Court went wrong in holding that the facts in the Bombay decision were different from those in the present case, for the facts in both the cases were the same and in fact they arose out of the same transaction, namely, the sale of the shares by the Agency Firm to the Purchaser Firm.

(3.) Mr. Gopal Singh, learned counsel for the Revenue, while supporting the order of the High Court raised a preliminary objection, namely, that the order of the Commissioner under S.33A of the Income-tax Act was an administrative act and, therefore, no writ of certiorari would lie to the High Court to quash that order under Art. 226 of the Constitution.