TMI Blog1963 (7) TMI 88X X X X Extracts X X X X X X X X Extracts X X X X ..... d together and can conveniently be disposed of by a common judgment. The facts are not in dispute and lie within a brief compass. The petitioner is a partner of two different firms ; one of them carries on business in respect of oil mill and the other in respect of commission agency. Each of the two minor sons of the petitioner has been admitted to the benefits of one of these two partnerships. It appears that there are also other major partners in each of these firms. The firms have been duly registered under the Income-tax Act. The individual assessment on the petitioner for the year 1951-52 was completed on October 31, 1951 ; for the year 1952-53 on April 21, 1954; for the year 1953-54 on January 23, 1954 ; for the year 1954-55 on February 10, 1956, and for 1955-56 on March 20, 1957; subsequently on the assessment of the firm in each of these five years, 1951-52 to 1955-56, the share income of the petitioner was rectified on March 31, 1956, April 30, 1957, March 2, 1959, and April 18, 1960, respectively. The oil mill firm appealed against each of the assessment orders. The Tribunal reduced the assessment made on the firm for the first four years. The appellate orders ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in matters like the present, whereas under the old Act there is no such provision for appeal. The argument on behalf of the respondent is that if the new Act applies the orders which the Income-tax Officer has already passed or may pass hereafter will become appealable and, therefore, the petitioner will not be entitled to maintain the present petitions for issuance of writs. In view of this submission it becomes necessary to consider briefly whether it is the old Act or the new Act that will apply to the instant cases. Reliance is placed by the learned counsel for the department on section 297 of the Act of 1961 which repeals the old Act of 1922 and also makes certain savings as to the applicability of the old Act. But none of the saving provisions contained in section 297 relates in plain terms to proceedings similar to those taken by the Income-tax Officer in the present cases. Even so, there is nothing in section 297(2) to indicate that the new Act will apply to cases like the present. Section 297 does not destroy the rights already created or acquired under the Act of 1922, so far as the present enquiry is concerned. The operation of the General Clauses Act is, therefore, n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... destroys the rights and privileges acquired under the old Act or the liabilities incurred thereunder. This circumstance leads to the conclusion that the relevant provisions of the old Act of 1922 should govern the impugned proceedings. There is yet another aspect. Section 297(2)(a) of the new Act says: Where a return of income has been filed before the commencement of this Act by any person for any assessment year, proceedings for the assessment of that person for that year may be taken and continued as if this Act had not been passed. Therefore, if the proceedings launched in the present cases by the Income-tax Officer can be construed as proceedings for assessment, they are in express terms saved by section 297(2)(a) of the new Act and only the provisions of the old Act can apply to them. There has been considerable debate at the bar as to the scope and import of the expression proceedings for assessment . It seems to me however that these words are of sufficient amplitude to comprehend within their scope the proceedings taken by the Income-tax Officer in the present cases. In essence, what he sought to do was to compute the petitioner's income at a higher amoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w Act which provide for an appeal are held to be applicable to the impugned proceedings. I do not think this contention is entitled to succeed, even if it be held that the new Act governs the present cases. Unlike in the case of mandamus, there is no rule of law which enjoins that when an alternative remedy is available, a writ of certiorari or prohibition should not issue. On the contrary, reported decisions disclose many instances where such writs have been issued in spite of the admitted availability of alternative remedies by way of appeal and revision. In State of U.P. v. Mohammad Nooh [1958] SCR 595, Venkatarama Ayyar J., speaking for the Constitution Bench of the Supreme Court, observed: In the next place it must be borne in mind that there is no rule, with regard to certiorari as there is with mandamus, that it will lie only where there is no other equally effective remedy. It is well established that, provided the requisite grounds exist, certiorari will lie although a right of appeal has been conferred by statute (Halsbury's Laws of England, 3rd edition, vol. 11, page 130 and the cases cited there). The fact that the aggrieved party has another and adequate remed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting an executive authority from acting without jurisdiction. Where such action of an executive authority acting without jurisdiction subjected, or was likely to subject, a person to lengthy proceedings and unnecessary harassment, the High Courts would issue appropriate orders or directions to prevent such consequences. The existence of such alternative remedies as appeals and reference to the High Court was not, however, always a sufficient reason for refusing a party quick relief by a writ or order prohibiting an authority acting without jurisdiction from continuing such action. When the Constitution conferred on the High Courts the power to give relief it became the duty of the courts to give such relief in fit cases and the courts would be failing to perform their duty if relief were refused without adequate reasons. It seems unnecessary to multiply citations in view of these weighty pronouncements. It follows that even if the new Act be held to apply to the present cases, the availability of an appeal under it will not be an obstacle in the way of the petitioner successfully seeking the writs of certiorari or prohibition in the instant cases. We have now to turn to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , is the inclusion of the share in the assessment of the partner or correction thereof, as the case may be. The section deems such inclusion or correction to be a rectification of a mistake apparent from the record . This section can, therefore, be invoked only if three conditions concur : (a) the share income of the partner is found to be not included or not correctly included in the individual assessment of the partner; (b) it is so found on an assessment or reassessment of the firm or on any reduction or enhancement made in the income of the firm under sections 31, 33, 33A, etc.; (c) it is desired to include the share income in the partner's assessment or to correct the share income as the case may be. And the period of limitation prescribed for making the rectification under section 35(5) is different from that prescribed for a rectification under section 35(1). Under section 35(5) a period of four years is to be completed from the date of the final order passed in respect of the firm ; whereas under section 35(1) it is four years from the date of the order of assessment of the individual partner. It often happens that the assessment of a firm is made only years af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Income-tax Officer cannot go on making fresh computations and issuing fresh notices of demand to the end of all time. A final assessment once made cannot be reopened except in circumstances detailed in sections 34 and 35 of the Act and within the time limited by those sections. The Commissioner's powers under section 33 can only be exercised subject to the provisions of sections 34 and 35. The provisions of these two sections are exhaustive and prescribe the only circumstances in which and the only time in which such fresh assessments can be made and fresh notices of demand can be issued. If section 35(5) is confined to serve the purpose for which it was enacted, there will be no case at all for taking any fresh proceedings against the petitioner-assessee for enhancing his tax liability or recomputing his income. In the appeals against the assessments of the firm, the appellate authorities in fact reduced the assessment of the firm's income. Therefore, in respect of each of the five years in question, the petitioner became entitled to some refund. But the learned counsel for the department has urged that even if the firm's income has been reduced, a formal rect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inor sons separately and collect the tax from each of them. It seems to me hopelessly time-barred now to attempt to make a rectification which he ought to have made years ago. What he is not entitled to do directly he cannot be permitted to do indirectly by resorting to the doubtful course of unduly stretching the scope of section 35(5). All that I have stated above will apply to the four assessment years, 1952-53 to 1955-56 ; but the assessment years 1951-52 stands on a special footing. The final assessment order on the petitioner was admittedly made for that year on October 31, 1951. Section 35(5) was enacted by the Amending Act of 1953 but it was given limited retrospective effect from April 1, 1952. Any assessment of a firm or any individual assessment of a partner completed before April 1, 1952, cannot, therefore, fall within the purview of section 35(5). Income-tax Officer, V Circle, Madras v. S.K. Habibullah [1962] 44 ITR 809 (SC) and Second Additional Income-tax Officer, Guntur v. Atmala Nagaraj [1962] 46 ITR 609 (SC) are clear authorities for this proposition. In Atmala Nagaraj s case (supra), the assessment of the partner was completed before April 1, 1952, and the Sup ..... X X X X Extracts X X X X X X X X Extracts X X X X
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