M MD SAHAGTHULLAH Vs. INCOME TAX OFFICER FIFTH

JUDGEMENT

(1.) THE petitioner was a partner of the firm, Messrs. Ziaullah & Sons. Originally the firm was assessed to income-tax for the assessment year 1951-52 in the status of an unregistered firm and the share income of the petitioner was determined at a particular sum and the said amount so determined was subjected to tax as well. THE firm took up the matter further to the higher hierarchy and questioned the order of assessment of the Income-tax Officer, which determined the status of the petitioner as an unregistered firm. It is not in dispute that the High Court ultimately in a tax revision case held that the firm was entitled to registration. Consequent upon this, the Appellate Tribunal passed orders directing that the firm be recognised as a registered-firm. THE order of the High Court was dated 24th February, 1961, and in June, 1961, the Tribunal gave the above direction. Pursuant to the above, the Income-tax Officer, for the assessment year 1951-52, with which we are concerned, redeter-mined the share income of the petitioner as a partner of a registered-firm. This order was passed under Section 35(5) of the Income-tax Act, 1922. It is as against this order that the present writ petition has been filed.

(2.) THE contention of the learned counsel for the petitioner is that, as Section 35(5) was inserted by the Income-tax (Amendment) Act of 1953, and came into effect from 1st April, 1952, the law which prevailed on that date-ought to apply and that, in that sense, there being no corresponding provision in the earlier enactment such as Section 35(5), the assessment is bad and without jurisdiction.