TMI Blog1968 (2) TMI 22X X X X Extracts X X X X X X X X Extracts X X X X ..... aise common questions of law. It will, therefore, be sufficient to refer to the facts of one of the three cases. Sri Vithaldas is the petitioner in Civil Miscellaneous Writ No. 21 of 1967. On December 15, 1955, the Income-tax Officer, District II, Kanpur, passed an assessment order against the petitioner for the year 1952-53. His total income was fixed at Rs. 57,992. This total income included a sum of Rs. 21,291 being the petitioner's share income from a certain firm, M/s. Bhawani Prasad Girdhar Lal, Bombay. The assessment was subject to rectification under section 35 of the Act. On March 27, 1956, the Income-tax Officer, Bombay, assessed the firm, M/s. Bhawani Prasad Girdhar Lal, Bombay. The total income of the firm was fixed at Rs. 66, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment of the firm. In such a case the starting point for limitation is the date of the final order passed in the case of the firm. Annexure " A " to the writ petition is a copy of the order of assessment dated March 27, 1956, passed against the Bombay firm, Annexure " A " shows that the petitioner's share of income was fixed at Rs. 9,678. In the assessment order dated December 15, 1955, the petitioner's share in the income of the firm was fixed at Rs. 21,291. The share ultimately fixed in annexure " A " was a good deal below the share assumed in the order dated December 15, 1955. The petitioner was, therefore, entitled to rectification under section 35 of the Act. But respondent No. 1 did not pass any order of rectification in favour o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : " The share income of M/s. Bhawani Prasad Girdhar Lal, Bombay, is under correspondence with the Income-tax Officer, Bombay, and necessary action will be taken after receipt of reply from him. " This order dated December 5, 1959, indicates that at least since December, 1959, respondent No. 1 was making attempts to obtain the petitioner's share income with M/s. Bhawani Prasad Girdhar Lal, Bombay. There should have been no difficulty in obtaining the necessary information from Bombay by March, 1960. Annexure " RA-5 " to the rejoinder-affidavit is a copy of another order of rectification with respect to Dwarka Nath, Kanpur. In that order dated October 5, 1959, it was mentioned that the share report from the Income-tax Officer, Bombay, wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appropriate time for passing orders under section 35 of the Act. But the petitioner has explained that between 1959 and the end of 1966 he made a series of representations and revisions to the higher authorities. Annexure " Z " to the petition is a copy of the order dated October 27, 1966, passed by the Commissioner of Income-tax, U.P. He regretted that the petitioner's claim could not be entertained. It is thus clear that the petitioner was adopting different methods for getting some relief up to October, 1966. The writ petition was moved on January 12, 1967. There is sufficient ground for condoning delay in moving the writ petition. Secondly, Mr. Gopal Behari urged that the period of limitation under section 35 of the Act is four ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould be construed as being directory only and not imperative. In All India Groundnut Syndicate Ltd. v. Commissioner of Income-tax Chagla C.J. observed at page 100 : " It is an elementary principle of law that no person ..... can put forward his own default in defence to a right asserted by the other party. " In Rajagopala Chettiar v. IV Income-tax Officer the Madras High Court expressed doubt whether the court can compel an officer to go outside the limits of time prescribed by section 35 of the Indian Income-tax Act and direct him to rectify an order after the expiry of the time prescribed by the section. In Rex v. Hanley it was observed at page 531, that " a mandamus will lie to compel the performance of a public duty by a public ..... X X X X Extracts X X X X X X X X Extracts X X X X
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