DEKA, J. : This is a reference under S. 66(1) of the Indian Income-tax Act at the instance of the assessee. The assessee, M/s Industrial Stores and Agency Co., Dibrugarh, was assessed for the assess­ment year 1948-49 in the status of an unregistered firm. The assessment order passed by the Income-tax Officer was dated 26-2-1953. Against that order of assessment, while an appeal was pending before, the Appellate Assistant Commissioner, the Commissioner of Income-tax passed an order on 13-2-1954 purporting to be one under S. 33B of the Income-tax Act whereby the order of assess­ment as passed by the Income-tax Officer was set aside and he was directed to make a fresh assess­ment after applying the provisions of S. 23(5)(b) SQ as to charge the partners direct in respect of their share of income. The Appellate Assistant Commissioner finally disposed of the appeal a little later, on 12-7-1954. An appeal was taken before the Income-tax Tribunal against the order of the Commissioner passed on 13-2-1954 and the same was dismissed by the order of the Tribunal dated 24-11-1958. (2) Three points were taken before the Appel­late Tribunal for the purpose of reference under S. 66'1) and the Tribunal formulated the following point for our consideration. The reference runs as follows: "Whether on the facts and in the circum­stances of the case the Tribunal was right in hold­ing that the Commissioner had jurisdiction to make: the order under S. 33B of the Indian Income-tax Act, setting aside the assessment made by the Income-tax Officer?" (3) The facts in this case are not disputed arid the only thing to be decided is whether the Com­missioner of Income-tax exercised his powers correctly under S. 33B, which had been the subject-matter of appeal before the Income-tax Appellate Tribunal. The point as taken before the Income-tax Appellate Tribunal was that since an appeal was pending before the Appellate Assistant Com­missioner of Income-tax against the order of the Income-tax Officer assessing the tax due by the firm, the Commissioner could not have exercised his powers under S. 33B at that stage. That con­tention has been repelled by the Appellate Tribunal relying mainly on the ground that it was covered by the decision of the; Supreme Court, in the case of Commr. of Income-tax, Bombay v. Amritlal Bhogilal and Co., reported in 1958-34 ITR 130: ( AIR 1958 SC 868 ). That con­tention has been repelled by the Appellate Tribunal relying mainly on the ground that it was covered by the decision of the; Supreme Court, in the case of Commr. of Income-tax, Bombay v. Amritlal Bhogilal and Co., reported in 1958-34 ITR 130: ( AIR 1958 SC 868 ). (4) The learned Advocate General appearing on behalf of the assessee has reiterated the self-same point before us and his argument is divided into two branches - (1) that the Commissioner of In­come-tax had no jurisdiction to exercise his power under S. 33B while an appeal against the original assessment made by the Income-tax Officer was pending before the Appellate Assistant Commis­sioner, and (2) that since the Commissioner of In­come-tax does not find categorically that the order of the Income-tax Officer was erroneous, he could not have interfered with it simply because he considered it to be prejudicial to the interest of Government revenue. (5) Before entering into a discussion of the points involved, I might quote S. 23(5)(b), which has a material bearing. The paragraph runs as follows: "In the case of an unregistered firm, the In­come-tax Officer may, instead of determining the sum payable by the firm itself, proceed to assess the total income of each partner of the firm, including therein his share of its income, profits and gains of the previous year, and determine the tax payable by each partner on the basis of such assessment, if, in the Income-tax Officer's opinion the aggregate amount of the tax including super­tax, if any, payable by the partners under such procedure would be greater than the aggregate amount which would be payable by the firm and the partners individually if separately assessed; and where the procedure specified in this clause is applied to any unregistered firm, the provisos to clause (a) of this sub-section shall apply thereto as they apply in the case of a registered firm." '(6) In regard to the first branch of the con­tention raised by the learned Advocate General, we do not think it admits of further consideration after the decision of the Supreme Court referred to earlier where it has been held that the Commis­sioner is competent to pass an order under S. 33B whenever he considers that it has been erroneous­ly passed and is prejudicial to the revenue, even while an appeal was pending from the order of assessment. (7) The learned Advocate General, however, has stressed much on the second branch of his argu­ment, namely, that the Commissioner does not find that the order of assessment passed by the Income-tax Officer was erroneous in law, and, therefore, he could not have interfered even if it was found prejudicial to the interest of the Government revenue, as contemplated in S. 23(5)(b) of the In­come-tax Act. This argument is not of much avail since the statute itself does not lay down that the error should be confined to an error on a point of law or manifest error of law. What the learned Commissioner seemed to think was that the Income-tax Officer did not apply his mind to the provisions of S. 23(5Xb) which he was required to do and it is not left to his mere discretion, as contended by the learned Advocate General for the assessee. The provision of S. 23(3) of the Income-tax Act relates to assessment in general and it has no particular reference to a registered or unregistered firm. Section 23(5)(a) has special reference to the case of a registered firm, and in case of unregistered firm, clause (b) of that sub-section has application. Even though the provision is in the form that the Income-tax Officer may instead of determining the sum payable by the firm itself, proceed to assess the total income of each partner of the firm, including therein his share of its income, profits and gains of the previous year, he has to examine the aggre­gate amount of the tax, with a view to ascertain what mode of assessment would be more profit­able to the department. Even though the section is in the form of authorising the officer to examine the point, it indirectly casts a duty on him. There­fore even if the assessment under S. 23(3) may not be illegal or unjustified, the Commissioner can examine as to whether the Income-tax Officer concerned had in his mind the provisions of S. 23(5)(b) at the time and applied the same to the facts of this case, - and an omission thereof may be consi­dered to be an error prejudicial to the interest of the revenue. (8) The learned Advocate General has further argued that the Commissioner was not explicit in the matter of saying that there was an error in not considering the provisions of clause (5)(b) of S. 23 by the Income-tax Officer. But his order, in substance, indicates that prejudice to the interest of revenue was caused because of the Income-tax Officer not taking into consideration the provi­sion of that section, and that is why he exercised his powers under S. 33-B of the Income-tax Act. We think, therefore, that this contention has not much force either and the Tribunal was justified in upholding this order. (9) In these circumstances, we think the ques­tion referred to us should be answered in the affirmative and in favour of the department. We, therefore, direct that the reference be answered as indicated above and the assessee pay the costs of hearing of this reference, which we assess at Rs. 100/-. MEHROTRA, J. : (10) I agree with the order proposed. In my opinion, the question should be answered in affir­mative. The facts have already been set out by My Lord. The assessee was assessed for the assessment year 1948-49 in the status of an un­registered firm. He filed an appeal against the order of assessment before the Appellate Assistant Commissioner. During the pendency of the appeal a revision was filed against the assessment and the Commissioner acting under S. 33B of the Income-tax Act set aside the order of assessment and re­manded the matter to the Income-tax Officer to make a fresh assessment on the partners directly under S. 23(5)(b). An appeal was filed against. the order of the Commissioner under S. 33B to the Appellate Tribunal and the Tribunal rejected the appeal, and affirmed the order passed by the Com­missioner. The main point taken before the Appel­late Tribunal was that no power could be exercised by the Commissioner under S. 33B during the pendency of the appeal. The Tribunal in the short order referred to the judgment of the Supreme Court in Amritlal's case, reported in 1958-34 ITR 130: ( AIR 1958 SC 868 ), and relying upon that held that there was no bar to the Commissioner's power being exercised under S. 33B during the pendency of the appeal, and, consequently, the ap­peal was rejected. The Tribunal in the short order referred to the judgment of the Supreme Court in Amritlal's case, reported in 1958-34 ITR 130: ( AIR 1958 SC 868 ), and relying upon that held that there was no bar to the Commissioner's power being exercised under S. 33B during the pendency of the appeal, and, consequently, the ap­peal was rejected. (11) The learned Advocate General, who ap­pears for the assessee, has not seriously pressed the point that the Commissioner had no jurisdic­tion during the pendency of the appeal to exercise his power under S. 33B, though he has not admitted that point. The main point urged by him is that under S. 33B the Commissioner could exercise his power only if the order of the income-tax Officer was erroneous and was prejudicial to the depart­ment. His contention is that the Commissioner has neither given a finding to the effect that the order of the Income-tax Officer was erroneous; nor could he come to that conclusion on the facts and circumstances of the present case. His short point Is that the Income-tax Officer had a discretion in the matter, he could tax the income of the firm, itself or he could tax the partners under S. 23(5}(b), and, if he exercised his discretion in a particular manner, the Commissioner cannot set aside the order and regard the discretion as erroneous or not in accordance with law. In my opinion, S. 33B does not speak of the errors of law alone. It speaks of erroneous assess­ment. Section 23(3) gives power to the Income-tax Officer to assess the total income of any un­registered firm. It also gives the alternative power to the Income-tax Officer to act under S. 23(5)(M and assess the partners of an unregistered firm. It the Income-tax Officer exercises his rowers under S. 23(3) it is open to the Commissioner, having regard to the circumstances of the case, to come to the conclusion that the case justified exercise of powers under S. 23(5)(b) and to that extent ho could regard the order of the Income-tax Officer as erroneous. In fact, the Income-tax Commissioner could have said having regard to the circumstances the Income-tax Officer should have exercised his power under Section 23(5)(b) and not having exercised that he has committed an error. In fact, the Income-tax Commissioner could have said having regard to the circumstances the Income-tax Officer should have exercised his power under Section 23(5)(b) and not having exercised that he has committed an error. If that error was examinable by the Commissioner, the Commissioner could interfere with the deci­sion of the Income-tax Officer on that point. It is not as if the law has given any discretion in the matter to the Income-tax Officer and it was as if the Income-tax Officer had exercised a parti­cular discretion after considering the entire material and that was not examinable by the Commissioner in revision. Nothing has been pointed out on the materials to show that the order of the Commissioner was erroneous or that the order of the Income-tax Officer was not erroneous. Having regard to the circumstances that it was prejudicial to the revenue of the State, the Income-tax Officer, in the opinion of the Commissioner, should have exercised his powers under S. 23(5)(b), and, to that extent he thought the order of the Income-tax Officer to be erroneous. In my opinion, therefore, it cannot be said that the Tribunal in the circumstances of this case in affirming the order of the Commissioner has acted in any manner illegally. The question as framed, which has already been set out, requires this Court to give its opinion as to whether in the circumstances the Commissioner's jurisdiction was properly exercised and the Tribunal was right in affirming the order of the Commissioner. As I have already indicated it cannot be said that the order of the Commissioner was in any manner without jurisdiction. AD/R.G.D. Order accordingly.