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TMI Blog1970 (7) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... five sons were members of a Hindu undivided family. Till the assessment year 1950-51, the income received by Hirday Narain was assessed to tax as the income of a Hindu undivided family. On November 19, 1949, the property of the joint family was partitioned between Hirday, Narain and his sons. In assessing the income for the assessment year 1951-52, the Income-tax Officer recorded an order that the property was partitioned, but he still assessed the income received by Hirday Narain as income of a Hindu undivided family. In appeal the Appellate Assistant Commissioner treated Rs. 18,520 earned between October 1, 1949, and November 18, 1949, as income of the former Hindu undivided family and directed that it be "excluded from the assessment." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... habad under article 226 of the Constitution challenging the order of the Income-tax Officer. A single judge of the High Court rejected the petition holding that at the stage of the original assessment the question that the income was not liable to be assessed under section 16(3)(a)(ii) of the Income-tax Act was not raised and that the assessee had not applied in revision to the Commissioner under section 33A of the Act. A Division Bench of the High Court confirmed that order in appeal, observing that the rectification under section 35 of the Act was "discretionary", and if the Income-tax Officer thought that proceedings were "substantially fair" he was "not bound to rectify the assessment on technical grounds". The High Court also observe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax; see also N. V. Narendra Nath v. Commissioner of Wealth-tax, (a case under the Wealth-tax Act). Hirday Narain received a share in the properties of the Hindu undivided family of which he and his wife were members. It may again be noticed that before the previous year expired, Hirday Narain's wife gave birth to a son on April 6, 1950. We are, therefore, unable to agree that the income accruing between November 19, 1949, and September 30, 1950, could be assessed in the hands of Hirday Narain as an individual. But the Solicitor-General submitted that Hirday Narain had filed his return in the status of an individual, and since the Appellate Assistant Commissioner had also passed an order when he directed separate assessment of the total re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, but by an order under section 25A the Income-tax Officer had held that the appellant and his sons had partitioned the property of the family. He, therefore, directed that the amount of Rs. 18,520 which belonged to the erstwhile Hindu undivided family be excluded from the assessment which accordingly stood reduced from Rs. 1,24,676 to Rs. 1,06,156. The Appellate Assistant Commissioner did not direct that the status in which the income was sought to be assessed for the period November 19, 1949, to September 30, 1950, be altered. Pursuant to the order of the Appellate Assistant Commissioner the Income-tax Officer assessed the income for that period as income of a Hindu undivided family represented by Hirday Narain. There was in fact an exis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irday Narain could have moved the Commissioner in revision, because at the date on which the petition was moved the period prescribed by section 33A of the Act had not expired. We are unable to hold that because a revision application could have been moved for an order correcting the order of the Income-tax Officer under section 35, but was not moved, the High Court would be justified in dismissing as not maintainable the petition, which was entertained and was heard on the merits. The High Court observed that under section 35 of the Indian Income-tax Act, 1922, the jurisdiction of the Income-tax Officer is discretionary. If thereby it is intended that the Income-tax Officer has discretion to exercise or not to exercise the power to recti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e object for which the power is conferred is for the purpose of effectuating a right there may be a duty cast upon the donee of the power to exercise it for the benefit of those who have that right when required on their behalf. Lord Penzance and Lord Selborne made similar observations at pages 229 and 235. Exercise of power to rectify an error apparent from the record is conferred upon the Income-tax Officer in aid of enforcement of a right. The Income-tax Officer is an officer concerned with assessment and collection of revenue, and the power to rectify the order of assessment conferred upon him is to ensure that injustice to the assessee or to the revenue may be avoided. It is implicit in the nature of the power and its entrustment to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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