Oak, C.J. - (1.) THESE three connected petitions under Article 226 of the Constitution arise out of three connected proceedings for rectification under Section 35 of the Indian Income-tax Act, 1922 (hereafter referred to as the Act). The facts of the three cases are similar. They raise common questions of law. It will, therefore, be sufficient to refer to the facts of one of the three cases.
(2.) SRI Vithaldas is the petitioner in Civil Misc. Writ No. 21 of 1967. On 15-12-1955 the Income-tax Officer, District II, Kanpur passed an assessment order against the petitioner for the year 1952-53. His total income was fixed at Rupees 57,992/-. This total income included a sum of Rs. 21,291/- being the petitioner's share income from a certain firm, M/s. Bhawani Prasad Girdhar Lal, Bombay. The assessment was subiect to rectification under Section 35 of the Act On 27-3-1956 the Income-tax Officer, Bombay assessed the firm M/s. Bhawani Prasad Girdhari Lal, Bombay. The total income of the firm was fixed at Rs. 66,472/-. The present petitioner's share was fixed at Rs. 9678/-. The share so fixed by the Income-tax Officer, Bombay was far less than the share assumed by the Income-tax Officer, Kanpur. So, the petitioner moved an application before respondent No. 1 to rectify the petitioner's assessment. It was requested that the income of Rupees 9,678/- be substituted for the assumed income of Rs. 21,291/-. In spite of several reminders, respondent No. 1 did not pass any order of rectification as requested by the petitioner. The petitioner made a series of representations or revisions before the Inspecting Assistant Commissioner, Income-tax Commissioner and the Central Board of Revenue. But none of these authorities gave any relief to the petitioner. So, on 12-1-1967 SRI Vithaldas filed the writ petition before this Court requesting that necessary directions be given for rectification. Section 35 of the Act provides for rectification of mistake. Sub-section (1) of Section 35 states: ". . . .the Income-tax Officer may at any time within four years from the date of any assessment order or refund order passed by him on his own motion rectify any mistake apparent from the record of the appeal, revision, assessment or refund, as the case may be, and shall within the like period rectify any such mistake which has been brought to his notice by an assessee". Sub-section (5) of Section 35 deals with special cases where a partner's assessment has to be rectified in view of the subsequent assessment of the firm. In such a case the starting point for limitation is the date of the final order passed in the case of the firm. Annexure A to the writ petition Is a copy of the order of assessment dated 27-3-1956 passed against the Bombay firm. Annexure 'A' shows that the petitioner's share of income was fixed at Rs. 9678/-. In the assessment order dated 15-12-1955 the petitioner's share in the income of the firm was fixed at Rupees 21,291/-. The share ultimately fixed in Annexure 'A' was a good deal below the share assumed in the order dated 15-12-1955. The petitioner was, therefore entitled to rectification under Section 35 of the Act. But respondent No. 1 did not pass any order of rectification in favour, of the petitioner.
(3.) TWO counter-affidavits have been filed on behalf of the respondents. The first counter-affidavit has been filed by respondent No. 1. In paragraph 8 of the counter-affidavit he has attempted justification for declining to pass an order for rectification. In paragraph 8 of the counter-affidavit It is stated: ". . . .as the period of limitation of 4 years for rectification u/s 35 of the I. T. Act 1922 had expired on 26-3-1960, the opposite party No. 1 had no power to rectify the assessment and consequently nothing was done by him". The assessment order against the Bombay firm was passed on 27-3-1956. So, action under Sub-section (5) of Section 35 of the Act could be taken up to 27-3-1960. Long before 27-3-1960 the petitioner moved respondent No. 1 for rectification. The petitioner's application Annexure 'B' is dated 13-5-1959. The respondent's excuse for not taking action under Section 35 of the Act is that necessary material was not available to respondent no, 1 up to 27-3-1960.;