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TMI Blog1955 (10) TMI 37X X X X Extracts X X X X X X X X Extracts X X X X ..... urported by those orders to rectify, on ground of alleged mistake, two original orders already passed, assessing the petitioner to income-tax for the consecutive years 1124 M.E. and 1951-52. We will take up these petitions in their order. 2. O.P. No. 119 of 1955. The petitioner is a merchant in Quilon. He carried on two lines of business activity, one being in tobacco wholesale and retail, and the other in cashew kernels, manufacture and export. 3. His assessment to income-tax for the year 1124 was made by order dated 30th May,1953, under the Travancore Income-tax Act, 1121. This order is filed as Ex. A and it show that his total income was made up there heads as follows: Property ₹ 16,420 Business ₹ 93,245 Other sources ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d set-off against the previous year's loss which had arisen from the cashew business only. Adding this total income was estimated as ₹ 57,153 and made available for assessment to income-tax and super-tax. This is the order which forms the subject of controversy in this original petition. 6. The explanation for the action so taken was "that tobacco and cashew were quite different commodities and had not been considered the same business in the assessment order. The income had been separately computed, but in nothing down the figures under business the fact that the previous year's loss under cashew exceeded the profits from cashew during the year of account had simply escaped notice." 7. The petitioner to whom notic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondent Income-tax Officer, was right or wrong in coming to a conclusion that the business activities of the petitioner herein in tobacco and cashew in fact constituted distinct businesses and not the "same business" within the meaning of section 24 clause (2) of the Indian Income-tax Act. The question, in my opinion, is only whether it was open to him after set-off, of loss carried over, had been once allowed, to reconsider the question and vive effect to the fresh conclusion if the proceedings were one of the rectification of mistake. I am inclined to hold that the matter involved is not a case of correction of mistake evident or apparent on the face of the record of assessment within the meaning of section 35 but amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, controlled and financed in common, if the staff employed and the pace of business are the same and if common accounts are kept, it may readily be inferred that the two lines of business are really part of the same business. Observations to this effect are found in the decided cases. But it is not to be assumed that all these features must be present in every case or that the absence of one or more of them is fatal to the claim that the different lines of business are really parts of the same business." 11. Again, the jurisdiction to correct by way of rectification under section 35 of the Indian Act is limited. It deals only with errors apparent on the face of the record which can be corrected at any stage. As observed by Gentle, C. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ument or debate. The rectification must follow as a necessary logical consequence of the mistake being found on the record." 12. It is clear therefore that the respondent, Income-tax authority, was obviously having a revision and reassessment in the guise of a rectification proceeding and such an order cannot stand. 13. I, therefore, issue a writ of certiorari quashing the order of rectification dated 29th April, 1955, filed in the case as Ex. C and passed under section 48 of the Travancore Income-tax Act by the respondent, Income-tax Officer, Quilon. The respondent will pay the costs of the petitioner. Advocate's fee ₹ 100. 14. O.P. No. 120 of 1955. This application relates to the income- tax assessment for 1951-52. The a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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