G. K. MISRA J. - The assessee filed revisions against the orders imposing penalty under section 46(1) of the Indian Income-tax Act, 1922, for non-payment of tax. These revisions were disposed of on January 30, 1964, under section 33A(2) without hearing the assessee. The assessee accordingly filed a review application asking for the hearing of the revisions in his presence. The review application was disposed of on November 23, 1964, after giving a hearing to the assessee on the question whether he was entitled to hearing in the revisions. The Commissioner of Income-tax, following Sugan Chand Saraogi v. Commissioner of Income-tax, held that the order to be passed under section 33A(2) is an administrative order and the assessee was not entitled to any hearing. This writ application has been filed under articles 226 and 227 of the Constitution for quashing the aforesaid orders passed on January 30, 1964, and November 23, 1964, refusing to give the assessee an opportunity of being heard in the revisions.
There was some controversy with regard to the right of the assessee to be heard at the revisional stage. The matter is concluded by the decision of the Supreme Court in Dwarka Nath v. Income-tax Officer, Special Circle, D Ward, Kanpur, where their Lordships expressed the view that an order assailed before the Commissioner in exercise of revisional jurisdiction under section 33A(2) affects the rights of the assessee and the jurisdiction conferred under that section is a judicial one. In that view of the matter, the assessee is entitled to a hearing in revision.
In view of the Supreme Court decision we quash the orders dated January 30, 1964, and November 23, 1964, and issue a writ of mandamus commanding the Commissioner of Income-tax, Bihar and Orissa, to hear the assessee in the revisions.
The writ application is allowed, but, in the circumstances, there will be no order as to costs.
R. N. MISRA J. - I agree.