1. I am constrained to allow this review petition, filed by the Revenue.
2. Seshachelapati J.. and I allowed the Writ Petition No. 1126 of 1962 by our order dated 1-2-1968. The Revenue seeks this order to be reviewed. Seshachelapati J.. having retired since rendering our decision, this petition has come up before me sitting singly.
3. One Katari Nagabhushanam, the father of the petitioner in the Writ Petition was a partner in a firm. For the assessment year 1948-49 he filed a return showing his taxable income at Rs. 6,000. Later he filed a letter stating that his 1/3 share of the income from the firm for the said assessment year was Rs. 6,402-5-4. The Income-tax Officer by his order dated 19-8-1949 provisionally accepted the share income of the assessee from the firm as stated by him. It thus happened that the individual assessment of the assessee for the year 1948-49 was made prior to 1st April 1952. However, the assessment of the firm of which the assessee was a partner was completed ex parte on 25-8-1952 fixing the total taxable income of the firm at Rs. 2,01,642. There were appeals preferred against this order but they are not material for the consideration of the present petition. The Income-tax Officer purporting to act under Section 35 of the Income-tax Act, 1922 issued a notice dated 27-1-1956, proposing to rectify the new assessment of Nagabhushanam by including an income of Rupees 67,214 representing his 1/3rd share of the firm's income for the assessment year 1948-49. Objections were raised by the assessee to the jurisdiction of the Income-tax Officer under Section 35 (5) of the Act to revise the assessment which had been completed before 1-4-1952. That objection was overruled by the Income-tax Officer by his order dated 29-12-1956 and the assessee's tax still payable was determined for that year at Rs. 25,254-4-0 after giving credit to the tax already paid in pursuance of the original assessment. Subsequently the assessee, Nagabhushanam died and no action was taken by the Department for nearly 3 years. Thereafter a certificate under S. 46 of the Act was issued and the certificate proceedings were set in motion by the attaching the properties of the deceased assessee. One of the sons filed another writ petition which was however, dismissed. Another son by name Srinivasa Rao filed the present writ petition No. 1126 of 1962 questioning the very proceedings as being without jurisdiction. The amount that was found to be still payable out of the tax determined, is Rs. 10,736.33 Ps. The Revenue of the sale proceeds of a house belonging to the assessee. Hence the Writ Petition.
4. The only contention raised on behalf of the writ petitioner was that the Income-tax Officer had no jurisdiction to reopen and reassess an individual assessment of a partner made before 1st April, 1952, wherein his share of the income from the firm was also included. It was contended that the fact that the assessment of the firm as such, was completed after 1-4-1952 could not confer any jurisdiction on the Income-tax Officer to reopen the individual assessment of a partner, completed before 1-4-1952 and that Section 35 (5) of the Act did not confer any such power on the Officer.
5. In our Order, allowing the writ petition, we upheld this objection put forward on behalf of the petitioners. In upholding that objection we relied upon a decision of the Supreme Court in the Second Additional Income-tax Officer, Gantur v. Atmala Nagaraj : 46ITR609(SC) , wherein it was held that -
'Sub-section (5) of Section 35 was not applicable to cases where the assessment of the partner was completed before April 1, 1952 even though the assessment of the firm was completed after 1st April, 1952.' .......................'Though S.23 (1) empowers the Income-tax authorities to rectify mistakes apparent from the record within four years from the record within four years from the date of the assessment order sought to be rectified a mistake which becomes apparent only from the record of the firm is not a mistake apparent from the record so far as the assessment of the partner is concerned.'
This is a decision rendered by a Bench of the Supreme Court consisting of three learned Judges.
6. However, the Supreme Court reversed this view by a decision of Bench, consisting of five learned Judges (Hedge, J., dissenting), in the Income-tax Officer v. T. S. Devinatha Nadar : 88ITR252(SC) , Mitter, J., speaking the majority view observed:-
'This group of appeals has been referred to a larger Bench than one of three Judges before whom the matter was opened on May 4, 1967 because of the earlier decision of this Court.'
After referring to the earlier decision in : 46ITR609(SC) the learned Judged stated that: -
'With very great respect, we find ourselves unable to concur. As we have already said, sub-section (5) of Section 35 of the 1922 Act becomes operative as soon as it is found on the assessment or re-assessment of the firm or on any reduction or enhancement made in the income of the firm that the share of the partner in the profit or loss the firm had not been included in the assessment of the partner or if included was not correct. The completion of the assessment of the partner is the subject-matter of rectification and this may have preceded the above mentioned date. Such completion does not control the operation of the sub-section. In the result, we find ourselves unable to concur in the decision or the reasoning in Atmala Nagaraj's case : 46ITR609(SC) .'
7. It has thus come to happen that the Supreme Court has reversed its own view on which we relied on rendering our decision dated 1-2-1968, though this latter decision of the Supreme Court was given on October, 25th, 1967 and was, therefore, in existence by the time was rendered our decision on 1-2-1968. However, the latter decision was not fully reported till April 1968 and its full report was published in the 68th volume, Part III of the Income-tax Reports of the dated 15th April 1968. It appears, it was short noted in November, 1967 itself and both the learned counsel have stated that they had not noticed this case in the short-noted report. The result was that this latter decision of the Supreme Court was not brought to our notice, when we heard this writ petition and rendered our decision on 1-2-68, relying upon : 46ITR609(SC) , which was subsequently overruled by : 88ITR252(SC) . There is thus an error apparent on the face of the record in our order dated 1-2-1968. Since the latter decision of the Supreme Court was not fully reported by the time was rendered our decision but was only short noticed, it may also be possible to say that despite the exercise of due diligence, the latter decision was not within the knowledge of the learned counsel. I am therefore, clear in my mind that the circumstances above narrated, are sufficient in law, to warrant a review of our dated 1-2-1968. Even supposing that it was the counsel's mistake in not placing the latest decision before us, that afford sufficient ground for reviewing our order. In Govinda Chettyar v. Varadappa Chettyar, (1939) 2 Mad LJ 809 : AIR 1940 Mad 17 the Madras High Court took the view that counsel's mistake is a sufficient ground which justifies a review.
8. Then, the next question is whether the provisions of the Civil Procedure Code, including those relating to review, are applicable to proceedings under Article 226 of the Constitution. A Division Bench of the Madras High Court in Chenchanna Naidu v. Praja Seva Transport Ltd., Guddapah : AIR1953Mad39 , (which is binding on me) held that : -
'If the application for the issue of a writ under Art. 226 is made on the civil side in dealing with such an application the High Court is governed by the provisions of the Civil Procedure Code, and the High Court has jurisdiction to review its order under Art. 226.'
In coming to this conclusion the learned Judges of the Division Bench examined the entire case law and relied upon an earlier decision of the Madras High Court in Ryots of Garabandha v. Zamindar of Parlakimidi, AIR 1938 Mad 722. Ultimately the learned Judges held that
'We have held in C. M. P. No. 625 of 1951 that the Government order should `ex facie' show that it applied its mind to the question of the legality, irregularity or propriety of the order of the Appellate Tribunal and that in the absence thereof the Government's order was liable to be quashed. No doubt our omission to consider that point was due to the Counsel not putting forward before us that aspect of the case, (that application have not (sic) been grounded on the arbitrary exercise by the Government of the power conferred on it under Section 64-A of the Act), But, whoever might be responsible for it, if the most important point arising in the petition was not considered by us we think such an omission would constitute 'an error apparent on the face of the record'. within the meaning of the expression occurring in Order 47, Rule 1, Civil Procedure Code so as to warrant a review of our order dated 9th January, 1951.
It follows that our order dismissing the application for the issue of writ of certiorari is discharged. A writ nisi will issue in this case .......................'
It is thus clear that the provisions of Order 47 of the Civil Procedure Code would apply to the proceedings under Article 226 of the Constitution.
9. The result of the above discussion is that it is a case where I could review our order dated 1-2-1968.
10. The learned counsel for the respondent in the review petition (Petitioner in the writ petition No. 1126 of 1962) has fairly stated that the latter decision of the Supreme Court has completely reserved the position and that in the light of that decision, our decision dated 1-2-1968 became erroneous. He has, however, contended that there is a remedy available to the Revenue, by way of appeal to the Supreme Court and that, therefore, our order dated 1-2-1968 need not be review. But, in view of the circumstances stated above and also the fact that had the later decision, which was already in force by that time, been brought to our notice, our decision would have been one of dismissal of the writ petition, I am of the opinion that the proper course is to review our order dated 1-2-1968 and set it right in accordance with the latter decision of the Supreme Court. Our order dated 1-2-1968 in W. P. No. 1126 of 1962 is accordingly set aside and the said Writ Petition is hereby dismissed. In the circumstances of the case I make no order as to costs either in the writ petition or in this review petition.
11. Order accordingly