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TMI Blog1963 (3) TMI 64X X X X Extracts X X X X X X X X Extracts X X X X ..... r partners including the petitioner. This partnership functioned between January 20, 1950, and June 27, 1952. One of the partners, Subburam, retired from the firm and a fresh partnership was constituted between the other three partners which subsisted between June 28, 1952, and July 28, 1953. Then another partner, Raghavacharya, went out of the partnership and the two remaining partners, the petitioner and one D.L. Narayanan, carried on the business between July 29, 1953, and November 12, 1954. In respect of the assessment years 1953-54, 1954-55 and 1955-56, applications were made on behalf of the firm under section 26A of the Income-tax Act for registration. These applications were signed by the partners of whom the petitioner was one. Registration was granted for all the years. The firm was assessed as a registered firm and the particulars of assessment are as detailed below: Assessment year Account year Date of assessment order Total income determined Rs. 1953-54 27-6-1952 30-3-1957 1,54,184 1954-55 28-6-1953 30-3-1957 36,000 1955-56 30-6-1954 30-3-1957 2,50,000 The assessment for the years 1954-55 and 1955-56 were made under section 23(4) of the Act. Appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oss of ₹ 9,216 for the assessment year 1953-54. The petitioner disclosed in his return that he was a partner of Vinodha Pictures and requested the Income-tax Officer to include his share income from the firm after the determination of his share of profit or loss resulting from the assessment of the firm. For the assessment year 1955-56 the petitioner submitted in his return that he had executed a release deed on November 4, 1954, to the other partner and stated that he ceased to be a partner from the very inception of the firm and that he was entitled only to a sum of ₹ 40,000 for the services rendered by him and expressed his willingness to bring that amount for taxation as and when the amounts were received. It is thus seen that there were two parallel proceedings, one in respect of the petitioner's individual income and the other in respect of the income of the firm of which, at all relevant dates, the petitioner was a partner. After the assessment of the firm for the assessment year 1955-56 necessarily the petitioner's individual assessment, which was completed prior to the assessment of the firm, has to be modified. Action was therefore taken by the Income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in respect of any completed assessment of a partner in a firm it is found on the assessment or reassessment of the firm or on any reduction or enhancement made in the income of the firm under section 31, section 33, section 33A, section 33B, section 66 or section 66A that the share of the partner in the profit or loss of the firm has not been included in the assessment of the partner or if included, is not correct, the inclusion of the share in the assessment or the correction thereof, as the case may be, shall be deemed to be a rectification of a mistake apparent from the record within the meaning of this section, and the provisions of sub-section (1) shall apply thereto accordingly......." Section 35(1) provides for rectification of mistakes. It is not every kind of mistake that can however be rectified under this provision. The mistake must be one which is manifest or apparent from the record. In order to obviate any contention on behalf of an assessee that the noninclusion of his share income from a firm would not be an apparent mistake on the face of his individual assessment, the legislature thought fit to introduce section 35(5). This provision came into effect on and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... principles of natural justice. In our opinion, this contention of the learned counsel for the assessee, viz., that the proceedings are bad because of want of notice, is also devoid of sub- stance. Mr. Srinivasan, however, contends that factually there has been no reduction of assessment but only an enhancement of assessment. He contends that the prior order of rectification should be treated to be non est and void in law as the foundation for the said order was knocked out by reason of the decision of the Income-tax Appellate Tribunal. Thus, according to the learned counsel, if the prior orders were treated as null and void and totally ignored, the result of the latest rectification proceedings was to throw a greater burden on him than what it was previously. We must observe that we are wholly unable to follow or appreciate this contention. Right or wrong, there was an order under section 35 and that was an order which was passed in the presence of the petitioner and after due notice to him. It cannot be said that the order fell to the ground by reason of certain other proceedings before the Income-tax Appellate Tribunal relating to the assessment of the firm. These proceedings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he was deemed to be a partner of that firm, his remedy was to have filed an appeal against the order of assessment on the firm. This again he failed to do. It is true that the partnership has now been dissolved, but, that would not avail the petitioner in avoiding tax on his share income from the firm. This position has now been settled by a decision of the Supreme Court in Muthappa Chettiar v. Income-tax Officer [1961] 41 I.T.R. 1; [1961] 1 S.C.R. 788. We have reached the conclusion that there is no error of law or jurisdiction apparent on the face of the record to justify the issue of a writ under article 226 of the Constitution. The petitioner had certainly another remedy to the Commissioner of Income-tax under section 23A of the Act against the order of rectification passed by the Income-tax Officer. But, in the view which we have taken, it is unnecessary to consider how far this remedy by way of revision would have been quite adequate and effective, and, whether the present writ should be entertained though he had an alternative remedy under the Act. This writ petition fails and is dismissed with costs. The rule nisi is discharged. Counsel's fee ₹ 150. Petition d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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