V PARTHASARATHY Vs. COMMISSIONER OF INCOME TAX MADRAS

JUDGEMENT

(1.) IN this petition for certiorari filed by the assessee, the question turns on a construction of the scope of an order of the Commissioner of INcome-tax, Madras, who is the first respondent. The second respondent, who is the IINd INcome-tax Officer, karaikudi, made an assessment purporting to be pursuant to an order of the tribunal dated October 19, 1961. The Tribunal made that order in the following circumstances. The assessee originally was a member of a Hindu undivided family. There was a partition on March 11, 1939. Thereafter, the assessee, his wife and three sons, the first of whom was a major and the last two were minors at the relevant time, constituted a partnership, the minors having been admitted to the benefits of the partnership. The assessee was assessed to income-tax for the assessment year 1951-52, treating the firm as an unregistered one. IN the assessment order, his share income was shown as Rs. 29, 124 but, as a loss was returned with regard to the unregistered firm, the assessee was not taxed. Against the order of the INcome-tax Officer, refusing registration of the firm, there was an appeal to the Tribunal, which concurring with the revenue, dismissed it. That was the subject-matter of a reference to this court in R. C. No. 49 of 1957. The result of it was the question whether registration should be granted was answered in favour of the assessee. The Tribunal then made the order under section 66 (5) disposing of the appeal finally, with a direction that the firm should be registered and all modifications consequential to the grant of such registration might be made in the hands of the partners. The INcome-tax Officer, while carrying out this direction, thought that he could like the opportunity of including in the petitioner's assessment the share income of his wife and two minor sons under section 16 (3)of the Act. He made an order on that basis. Apparently, in addition to the tribunal's order under section 66 (5), the INcome-tax Officer relied on section 35 (5) too. From his order there was a petition to the first respondent to revise the order on the ground that section 35 (5) would be inapplicable to the case, as there was no mistake apparent from the record within the meaning of section 35 (1), and that, even if section 35 (5) was inapplicable, rectification beyond four years from October 30, 1953, would be out of time, and that, even otherwise, this was not a case falling within the ambit of section 35 (5 ).

(2.) THE first respondent in his order noted these grounds, but, in his view, there was no need to decide the ground relating to section 35 (5 ). He considered that the order of the Income-tax Officer was passed pursuant to the order of the tribunal under section 66 (5) and, that being the case, no question of limitation would also arise. He stated "this order would, in my opinion, cover all the modifications necessary in the hands of the partners in the manner done by the income-tax Officer. " *