TMI Blog1971 (9) TMI 66X X X X Extracts X X X X X X X X Extracts X X X X ..... k to the High Court for deciding that question in accordance with this decision. Appeals allowed. Case remanded - - - - - Dated:- 17-9-1971 - Judge(s) : K. S. HEGDE., A. N. GROVER JUDGMENT The judgment of the court was delivered by HEGDE J.---These are appeals by special leave from the decision of the High Court of Kerala. The questions of law arising for decision in these two appeals are identical. Therefore, it would be sufficient if we set out the facts of the case in Civil Appeal No. 2569 of 1969. The respondent in that appeal is ex parte but the respondent in Civil Appeal No. 2570 of 1969 is represented by Mr. Sardar Bahadur. Hence, the opposing view-points on that question have been fully debated before us. Now coming to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... due to a brother or to six thousand rupees, whichever is higher. Explanation.---For the purpose of this sub-section--- (a) the expression 'share of income due to a brother' means the portion of the total agricultural income of the family which would have accrued to a brother, if a partition of the assets had been effected according to law on the day before the assessment is made ; and (b) 'son' includes a son's son. " Subsequent to the passing of assessment orders on March 14, 1962, Act XII of 1964 was passed by the Kerala Legislature. That Act amended sub-section (3) of the Act and omitted sub-section (4). That amendment came into force with effect from April 1, 1958. Amended sub-section (3) reads : " In the case of a Hindu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat we have to see is whether the power was exercised in respect of each of the assessments within the period prescribed therein. The High Court has come to the conclusion that, on the facts of the case, the Agricultural Income-tax Officer could only have exercised his power under section 35 as he was dealing with a case where assessment had been made at too low a rate. For the reasons to be presently stated the judgment of the High Court cannot be accepted as correct. Section 35 of the Act corresponds to section 34 of the Indian Income-tax Act, 1922, and section 36 corresponds to section 35 of that Act. This court had occasion to deal with the scope of section 35 of the Indian Income-tax Act, 1922, in M. K. Venkatachalam v. Bombay Dy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the law as it stood on the day when the order was passed. Overruling that decision this court held that the Income-tax Officer was justified in exercising his powers under section 35 and rectifying the mistake. This court held that as a result of the legal fiction brought about as a result of the retrospective operation given to the Amending Act, the subsequently inserted proviso must be read as forming part of section 18A(5) of the principal Act as from April 1, 1952, and consequently the order of the Income-tax Officer dated October 9,1952, was inconsistent with the provisions of the proviso and suffered from a mistake apparent from the record. Dealing with the scope of section 35 of the Indian Income-tax Act, 1922, Gajendragadkar J., a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the principal Act as from April 1, 1952, the conclusion is inescapable that the order in question is inconsistent with the provisions of the said proviso and must be deemed to suffer from a mistake apparent from the record. That is why we think that the Income-tax Officer was justified in the present case in exercising his power under section 35 and rectifying the said mistakes." There is another decision of this court bearing on the question of law which we are considering and that decision is Maharana Mills (P.) Ltd. v. Income-tax Officer, Porbandar. The assessee in that case was a private limited company. It was assessed to income-tax for the assessment year 1953-54 under the provisions of the. Indian Income-tax Act, 1922. As per the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave been made under section 34 of that Act. Unfortunately, in the present case, the attention of the learned judges of the High Court was not invited to any of the two decisions referred to earlier. For the reasons mentioned above, we come to the conclusion that the Agricultural Income-tax Officer was empowered to make the rectification under section 36 of the Act. But, from the material before us, it is not possible for us to decide which of all assessments would fall within the period prescribed in section 36 of the Act. For that reason these cases have got to go back to the High Court for deciding that question in accordance with this decision. In the result these appeals are allowed and they are remitted to the High Court for disp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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