Assessments completed under the old Act should be resorted to u/s.35 of the old Act or u/s.154 of the new Act has figured in the following cases recently. - Income Tax - 162/CBDT

INSTRUCTION NO 162/CBDT, Dated: April 23, 1970 Section(s) Referred: 154 ,155 , 35 of 1922 Act Statute: Income - Tax Act, 1961 Reference is invited to Board's Circular No.27(LVII-3) D of 1962 dated 27th August 1962 and to say that the question whether rectification proceedings in respect of assessments completed under the old Act should be resorted to u/s.35 of the old Act or u/s.154 of the new Act has figured in the following cases recently:- i) P.M.Barucha and Co. vs. G.S.Venkatesan, ITO(74 ITR S.N.p.5)-The Gujarat High Court observed that although rectification in such cases could not be made by the ITO u/s 154 of the new Act and had properly to be made u/s.35 of the old Act an order of rectification even where passed in such a case u/s.154 of the new Act could not be regarded as without jurisdiction; as long as the ITO had the power to pass a rectification order under one provision or the other and the condition precedent to the exercise of the power and the content of the power were the same, the order passed by the ITO could not be held invalid only on the ground that a wrong section was mentioned. ii) Giridharilal Jhajaria vs. C.I.T., W.B.II, Calcutta High Court judgement circulated to all C.I.T's with CIT., W.B-Calcutta endorsement NO.J/109732-55/CT/75/1/65-66 dated the 7th August, 1969-The Calcutta High Court also held to the same effect Gujarat High Court at item (i) above. 2. The Gujarat High Court and Calcutta High Court decisions mentioned at items (i) and (ii) above may be cited before appellate authorities where rectification proceedings are under challenge before them on this ground. In assessment proceedings however it may be advisable to resort to Sec.35 of the Old Act in such cases, to avoid criticism on this ground. 3. All officers in CsIT charges may please be informed accordingly.