Rajagopalan J.

1. These are applications under Article 226 of the Constitution for the issue of writs of prohibition or other appropriate writs to restrain the Income Tax Officer from enforcing the orders of assessment passed u/s 34 of the Income Tax Act, with reference to the assessment years 1943-44 and 1944-45.

2. The facts that led up to the Institution of these applications cannot be in dispute. B. Audayya and C. Pitchayya carried on trade in textiles. There were three firms. The first firm was known as Audayya and Pitchayya. There was a registered deed of partnership dated 20-4-1936, and the partners purported to dissolve the partnership on 31-3-1948. The second firm was known as C. Pitchayya and Co., and purported to consist of C. Pitchayya and one R. Subba Rao. The deed of partnership between the two was dated 30-7-1941, and the partnership was dissolved on 31-3-1949. The third firm was known as Prabhat Textiles. That partnership purported to include seven persons including B. Audayya and C. Pitchayya. The deed of partnership was dated 1-12-1941. The partnership was dissolved by a decree of Court dated 22-12-1949, but with effect from 1-1-1949.

It should be convenient to refer to the three firms as I, II and III respectively in the rest of this order. Each of these three firms was registered u/s 26-A of the Income Tax Act, for each of the assessment years now in question, 1943-44 and 1944-45 among other years. There was an enquiry by the Special Income Tax Officer, North Madras, and by his order dated 31-3-1945 he held that each of these three firms was a separate entity; and they were assessed to Income Tax on that basis in the relevant assessment years.

3. Proceedings were initiated u/s 34 of of the Income Tax against firm No. III, Prabhat Textiles, with a notice dated 14-8-1951 issued u/s 34(1) of the Income Tax Act, addressed to the assessee through its managing partner C. Pitchayya and served on his agent. In the course of the assessment proceedings u/s 34, the Income Tax Officer issued a notice dated 17-5-1952 to each of the seven alleged partners to produce their account books. None was filed on the plea, that the account books had been filed in a civil Court.

The Income Tax Officer estimated the escaped income to the best of his judgment and assessed it to tax. He also held that the firm No. III was a fictitious one, and that the real partners were only Audayya and Pitchayya. The Income Tax Officer cancelled the registration of the firm under Rule 6-B of the Income Tax rules. The order of assessment for 1943-44 was dated 14-8-1952 and that for 1944-45 was dated 25-2-1953. Narayana Chetti, one of the alleged partners, filed W. P. No. 613 of 1952 with reference to the assessment for 1943-44 and W. P. No. 201 of 1953 with reference to the assessment for 1944-45.

4. Similar action u/s 34 was taken against firms I and II with notices issued u/s 34(1) dated 14-8-1951 addressed to Pitchayya on behalf of the firms. The escaped income in the case of these two firms also was assessed on the best judgment basis. The Income Tax Officer held that firm No. II was a fictitious firm, and that the business of both firms I and II really constituted one business. The registration of both firms I and II was cancelled under Rule 6-B, and it was as an unregistered firm that B. Audayya & C. Pitchayya were assessed u/s 34 for both 1943-44 and 1944-45. The order of assessment for 1943-44 was dated 14-8-1952 and that for the assessment year 1944-45 was dated 25-2-1953. It was the validity of these proceedings that C. Pitchayya challenged as petitioner in W. P. No. 629 Of 1952 and W. P. No. 203 of 1953.

5. It was admitted that appeals had been filed against each of these orders of assessment. There is no specific provision in the Act for any appeal against orders of cancellation of registration passed under Rule 6-B; but then there were no separate orders under Rule 6-B, apart from the orders of assessment in each of these cases, each of which order is now under appeal.

6. Apart from every other consideration, the existence of a right of appeal, which has also been availed of in these cases, should suffice to justify this Court to decline to exercise the jurisdiction conferred on it by Article 226 of the Constitution. In view, however, of the fact, that the primary relief asked for is the issue of writs of prohibition, we shall deal with the main contentions of the learned counsel for the petitioners.

7. The learned counsel for the petitioners put forward three points for our consideration: (1) That the proceedings u/s 34 against each of these three firms were without jurisdiction. (2) That the cancellation of registration of each of the three firms was without jurisdiction, as rule 6-B was ultra vires the Central Board of Revenue, which promulgated the rules under the powers conferred on it by the Act, and (3) That it was illegal to assess escaped income u/s 34 on an unregistered firm, while the original assessment for the assessment years 1943-44 and 1944-45, which still stood, was on the basis that the firms were registered u/s 26-A of the Income Tax Act.

8. Point No. 1: Learned counsel for the petitioners referred to Section 23(5) of the Act and contended that it was not the registered firm that was the assessee, as Section 23(5) provided for the apportionment of the tax liability between the partners of the registered firm. We are unable to accept this contention. Section 23 provides for two stages (1) the assessment of the income and (2) the assessment of the tax liability. The definition of the term "assessee" read with the charging Section, S. 3 of the Act, and read also with Section 23 of the Act should make it clear that even in the case of a registered firm, the firm does not cease to be the assessee, though u/s 23(5) of the Act, the tax on the assessed income is apportioned between the several partners of the registered firm, Nor are we able to see any real force in the contention of the learned counsel for the petitioners, that Section 23 (5) (a) of the Act, which provides for the apportionment of the liability between the partners in the case of the registered firm is by way of an "exception". As. we have already pointed out, the registered firm does not cease to be the assessee, despite the apportionment of the tax liability between the partners of the registered firm. It therefore follows that there can be no real basis either for the further contention of the learned counsel for the petitioners, that in the context of Section 34, the expression "assessee" can only mean "the person liable to pay the tax" u/s 23(5)(a). i.e., the partner and not the registered firm. It is the income of the firm that has got to be assessed both u/s 23 and u/s 34, with the only difference that it is the escaped income that comes in for assessment u/s 34.

9. Point No. 2: We are unable to accept the contention of the learned counsel for the petitioners that rule 6-B is ultra vires the Central Board of Revenue. No doubt Section 26-A(2) provides that the application for registration should contain such particulars and shall be in such form, and be verified in such manner, as may be prescribed. Section 59 confers the powers of making rules. Section 26-A read with Section 69 of the Act, the learned counsel for the petitioners contended, did .riot authorise the Central Board of Revenue to provide for the cancellation of registration. Specific provisions for cancellation of registration have no doubt been made in the Act itself u/s 23(4) of the Act, and an order for cancellation passed under that section is made appealable.

But rule 6-B provides for the cancellation of registration of the firm not as a measure of punishment, but upon a decision reached by the Income Tax Officer, that there was no real firm at all, and that obtaining a registration of such a fictitious firm was really in fraud of the Income Tax department. We are unable to see any basis for the contention, that such a rule as Rule 6-B, is beyond the scope of either the Income Tax Act, or of the rule making powers conferred on the Central Board of Revenue by Section 69. Even read with Section 26-A, Rule 6-B is not beyond the scope of the Income Tax Act and the specific provision only for registration made u/s 26-A of the Act.

10. Learned counsel for the petitioners pointed out that unlike Section 23(4) of the Act, Rule 6-B did not provide for notice to the assessee before the cancellation of registration, and he contended that the rule which itself provided for no notice was ultra vires. That contention, again, we are unable to accept. It must be remembered that in the case of each of these three firms, it was after an enquiry in the course of the assessment proceedings u/s 34, in which the partners were given an opportunity to participate--and they did participate that the Income Tax Officer came to the conclusion, that firms II and III were really fictitious, and it was on that basis that he cancelled the registration.

Whatever might be scope of Rule 6-B, the cancellation of registration in these cases was in the course of assessment proceedings of which the alleged partners had full notice. It may not be necessary to go into the question, whether rule 6-B which does not provide for the issue of notice, is therefore ultra vires. In the circumstances proved in this case.

11. The next contention of the learned counsel for the petitioners was that rule 6-B could not be made retroactive in its operation. That contention really ignores the basic feature of the case that it was with reference to the two assessment years 1943-44 and 1944-45 for each of which years registration had been granted u/s 26-A, that the Income Tax Officer purported to cancel the registration. The assessment for these years must necessarily be after the close of the accounting years, and the Act itself envisages the possibility of the assessment being completed even after the assessment year.

The consideration of the question either of registration or non-registration with respect to the accounting year must necessarily be retrospective in its operation, as the Income Tax Officer had certainly jurisdiction u/s 34 to go into the question of escaped income with reference to a given assessment year long after the expiry of that assessment year. The cancellation of registration, which has reference only to that assessment year, must necessarily be "retrospective" in its operation.

12. We have already dealt with the question whether the partners including the alleged partners in Prabhat Textiles had notice of the proceedings u/s 34. It was true that notice u/s 34(1) was addressed only to the managing partner in the case of firm No. III. but then that notice was quite a valid one under Section. 63 of the Act. Besides, as we have already pointed out, with reference to the notice dated 17-5-1952, every one of the seven partners had an opportunity to participate in the assessment proceedings, and they did participate, though they failed to avail themselves of the opportunity given by the Income Tax Officer to produce the account books.

13. Point No. 3: What we have said above is enough to dispose of this point also. Under Section. 34 of the Act, the Income Tax Officer could deal only with the escaped income of a firm and, in doing so, he cannot go back upon the assessment already made u/s 23; but in making assessment u/s 34 all the powers conferred upon the Income Tax officer u/s 23 can and should be exercised; and with reference to the given assessment year it was perfectly open to the Income Tax Officer to deal with the assessment on the basis that it was an unregistered firm, after cancelling the registration that had already been granted.

14. The petitions fail and are dismissed with costs of Rs. 250, each in W. P. Nos. 613 and 629 of 1950. There will be no order as to costs in W. Ps. Nos. 201 and 202 of 1953.