TMI Blog1962 (4) TMI 6X X X X Extracts X X X X X X X X Extracts X X X X ..... be used in this case, and the decision of the High Court was right. Being a final assessment, it could be rectified only under the law, as it stood then. That law did not include the fiction enacted by sub-section (5), which, when enacted, could not be used in those cases which had been finally closed before April 1, 1952. Appeal dismissed. - - - - - Dated:- 24-4-1962 - Judge(s) : S. K. DAS., M. HIDAYATULLAH., J. C. SHAH JUDGMENT The judgment of the court was delivered by HIDAYATULLAH J.--These are two appeals on certificates under article 133(1)(c) of the Constitution, by the Second Additional Incom-tax Officer, Guntur, against the common decision of the High Court of Andhra Pradesh in two appeals under the Letters Pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed under section 46(1) of the Income-tax Act on the respondent in Civil Appeal No. 411 of 1961. The respondents moved the High Court of Andhra Pradesh under article 226 of the Constitution. Before the High Court, the department justified the revised, assessment under sub-section (5) of section 35 of the Income-tax Act. That sub-section was added by section 19 of the Indian Income-tax (Amendment) Act, 1953 (25 of 1953), but was to be in force from April 1, 1952. The resulting; position thus was that the original assessment was before the operation of sub-section (5), but the assessment of the firms and the revised assessments were after that date. The learned single judge made an error in thinking that the assessments of the firms were ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax authorities to rectify mistakes apparent from the record of assessees within four years from the date of the assessment order sought to be rectified, but a mistake not apparent from such record could not be said to be made apparent from another record, which the record of the firm would be. The decision of Subba Rao C.J. (as he then was) in Kanumarlapudi Lakshminarayana Chetty v. First Additional Income-tax Officer, Nellore was approved, where the learned Chief Justice observed that such a mistake was" not a mistake apparent from the record but a mistake discovered from the disposal of another case". Speaking then of sub-section (5), this court observed that the fiction enacted in that sub-section was not out of abundant caution but to p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y or by implication. It has been given a limited retrospectivity from April 1, 1952, and it was held by this court in the cited case that it was not open to courts to give more retrospectivity to it. Resort in this case could only be taken to the law as it stood before the introduction of sub-section (5), and as determined already by this court, the record of the firm's assessment could not then be called in aid to demonstrate an error on the record of a partner's assessment. It was further held in S.K. Habibullah's case that the provision enacted by sub-section (5) is not procedural in character and that it affects vested rights of an assessee. In our opinion, sub-section (5) could not be used in this case, and the decision of the High Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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