LALA KAILASHPAT SINGHANIA Vs. INCOME TAX OFFICER

JUDGEMENT

(1.) THIS is a writ petition under article 226 of the Constitution. It arises out of assessment proceedings of a Hindu undivided family for the assessment year 1946-47. On March 12, 1949, the income of the Hindu undivided family was assessed at a figure of Rs. 5,88,100. On March 31, 1949, the assessment order was rectified and the figure of income was reduced to Rs. 5,38,100. There was an appeal by the family against the assessment and by order dated March 20, 1951, the assessment was further reduced to Rs. 4,29,325. Thereafter, the assessment was reopened under section 34 and by order dated January 29, 1952, the income of the family was computed at the figure of Rs. 4,76,309. It appears that, subsequent to this, by reason of the assessment of certain firms, from which the family derived certain share income, its income was still further reduced by a sum of Rs. 55,116. THIS necessitated the rectification of the order dated January 29, 1952. By order dated November 18, 1955, the Income-tax Officer, instead of rectifying the order dated January 29, 1952, erroneously rectified the order determining the income of the family consequent upon the order of the Appellate Assistant Commissioner, dated March 20, 1951. When this error was subsequently discovered, the Income-tax Officer issued a notice under section 35 on September 7, 1959, proposing to correct the error which had been committed in making the rectification on November 18, 1955. In this notice it was stated that the sum of Rs. 55,116 should have been deducted from Rs. 4,76,309 which had been found to be the income of the family under order dated January 29, 1952, under section 34, instead of which the amount of Rs. 55,116 had been wrongly deduced from the amount for Rs. 4,29,325, which was the income determined under the appellate order dated March 20, 1951. In consequence, it was proposed to put the figure of income at Rs. 4,20,411 instead of at Rs. 3,37,427. Upon the receipt of this notice, an objection was filed on behalf of the family on September 16, 1959, and this objection was two-fold, firstly, that the notice under section 35 was without jurisdiction and, secondly, that the rectification was barred by limitation. The objection were overruled by order dated September 19, 1959. Against this order the above writ petition was filed on October 20, 1959.

(2.) THE two objections which were taken before the Income-tax Officer have been reiterated before me by learned counsel in support of this writ petition.