- (1.) WE have heard Sri A. N. Mahajan, learned Standing Counsel appearing for the Department and Sri S. S. Chauhan, Advocate for the respon dents.
(2.) FOLLOWING question has been referred to be answered by this Court: - "whether on the facts and-in the circumstances of the case, the Tribunal was justified in law in holding that the rectificatory order passed by the W. T. O, under Section 35 of the W. T. Act is illegal and invalid and, therefore, is liable to be quashed?" Notice under Section 35 (4) of Wealth Tax Act, 1957 (hereinafter referred to as the "act") was issued by the Wealth Tax Officer (in short W. T. O.) on 25. 4. 1981 I requiring the assessee's presence before him on 29. 4. 1981. The notice men tioned the reason that there are some calculation mistake which needs rectifica tion. The authorised representative of the assessee appeared before the Assess ing Officer on 29. 4. 1981 and requested him to clarify the nature of alleged mis takes which he proposed to rectify. He said that notice was vague and did not specify any reason which could have been effectively replied by the assessee. However nothing was clarified to him and the matter was adjourned to 4. 5. 1981 on which date the order was passed by W. T. O, observing that none was present on behalf of the assessee and, therefore, it is evident that he has no answer to the notice. Learned Counsel appearing for the Revenue submitted that the notice since mentioned that there are some calculation mistakes which need rectification, the Tribunal erred in law by holding that the notice was unreasoned, vague and did not contain any specific aspect which could have been replied by the assessee.
(3.) ON the contrary, it is contended by the other side that in the absence of any specific reason contained in the notice, no reasonable opportunity was af forded to the assessee and, therefore, the notice being illegal, has rightly been set aside by the Tribunal. Section 35 of the Act confers power upon the authorities for rectification of mistakes but where the effect of such rectification results in enhancement of assessment or reducing of refund or otherwise increasing the liability, no such rectification is permissible unless the authority concerned has given notice to the assessee giving him reasonable opportunity of hearing. Section 35 (1) and (4) of the Act, relevant for the present purpose, are reproduced as under: "35. (1) With a view to rectifying any mistake apparent from the record - (a) the Assessing Officer may amend any order of assessment or of refund or any other order passed by him; (aa) a wealth-tax authority may amend any intimation or deemed intima tion under sub-section (1) of Section 16. (aaa) the Valuation Officer may amend any order passed by him under Section 16a; (b) the Joint Director or Joint Commissioner or Director or Commissioner or Joint Commissioner (Appeals) or Commissioner (Appeals) may amend any order passed by him under Section 18a; (c) the Joint Commissioner - (Appeals) or Commissioner (Appeals) may amend any order passed by him under Section 23 or Section 23a; (d) the Commissioner may amend any order passed by him under sec tion 23 or Section 23a; (e) the Appellate Tribunal may amend any order passed by it under sec tion 24; (4) An amendment, which has the effect of enhancing an assessment or reducing a refund or otherwise increasing the liability of the assessee, shall not be made under this section unless the authority concerned has given notice to the assessee of its intention so to do and has allowed the assessee a reasonable opportunity of being heard. ";