1. These three connected petitions under Article 226 of the Constitution arise out of three connected proceedings for rectification under Section 35 of the Indian Income-tax Act, 1922 (hereafter referred to as the Act). The facts of the three cases are similar. They raise common questions of law. It will, therefore, be sufficient to refer to the facts of one of the three cases.
2. Sri Vithaldas is the petitioner in Civil Misc. Writ No. 21 of 1967. On 15-12-1955 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 Rupees 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 subiect to rectification under Section 35 of the Act On 27-3-1956 the Income-tax Officer, Bombay assessed the firm M/s. Bhawani Prasad Girdhari Lal, Bombay. The total income of the firm was fixed at Rs. 66,472/-. The present petitioner's share was fixed at Rs. 9678/-.
The share so fixed by the Income-tax Officer, Bombay was far less than the share assumed by the Income-tax Officer, Kanpur. So, the petitioner moved an application before respondent No. 1 to rectify the petitioner's assessment. It was requested that the income of Rupees 9,678/- be substituted for the assumed income of Rs. 21,291/-. In spite of several reminders, respondent No. 1 did not pass any order of rectification as requested by the petitioner. The petitioner made a series of representations or revisions before the Inspecting Assistant Commissioner, Income-tax Commissioner and the Central Board of Revenue. But none of these authorities gave any relief to the petitioner. So, on 12-1-1967 Sri Vithaldas filed the writ petition before this Court requesting that necessary directions be given for rectification.
3. Section 35 of the Act provides for rectification of mistake. Sub-section (1) of Section 35 states:
'. . . .the Income-tax Officer may at any time within four years from the date of any assessment order or refund order passed by him on his own motion rectify any mistake apparent from the record of the appeal, revision, assessment or refund, as the case may be, and shall within the like period rectify any such mistake which has been brought to his notice by an assessee'.
Sub-section (5) of Section 35 deals with special cases where a partner's assessment has to be rectified in view of the subsequent assessment 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.
4. Annexure A to the writ petition Is a copy of the order of assessment dated 27-3-1956 passed against the Bombay firm. Annexure 'A' shows that the petitioner's share of income was fixed at Rs. 9678/-. In the assessment order dated 15-12-1955 the petitioner's share in the income of the firm was fixed at Rupees 21,291/-. The share ultimately fixed in Annexure 'A' was a good deal below the share assumed in the order dated 15-12-1955. 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, of the petitioner.
5. Two counter-affidavits have been filed on behalf of the respondents. The first counter-affidavit has been filed by respondent No. 1. In paragraph 8 of the counter-affidavit he has attempted justification for declining to pass an order for rectification. In paragraph 8 of the counter-affidavit It is stated:
'. . . .as the period of limitation of 4 years for rectification u/s 35 of the I. T. Act 1922 had expired on 26-3-1960, the opposite party No. 1 had no power to rectify the assessment and consequently nothing was done by him'.
6. The assessment order against the Bombay firm was passed on 27-3-1956. So, action under Sub-section (5) of Section 35 of the Act could be taken up to 27-3-1960. Long before 27-3-1960 the petitioner moved respondent No. 1 for rectification. The petitioner's application Annexure 'B' is dated 13-5-1959. The respondent's excuse for not taking action under Section 35 of the Act is that necessary material was not available to respondent no, 1 up to 27-3-1960.
7. Apart from the firm 'Bhawani Prasad Girdhar Lal, Bombay', the petitioner had shares in certain other firms also. In connection with the assessment of those firms, the question arose about rectification of the petitioner's assessment. Such rectification was actually carried out. Annexure 'D' dated 5-12-1959 is such an order passed under Section 35 of the Act with reference to those firms. Annexure 'D' concluded thus:
'The share income of M/s Bhawani Pd. 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 5-12-1959 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 1980. Annexure RA-5 to the rejoinder-affidavit is a copy of another order of rectification with respect to Dwarka Nath, Kan-pur. In that order dated 5-10-1959 it was mentioned that the share report from the Income-tax Officer, Bombay was received by respondent No. 1 in August 1959. Annexure RA-1 to the rejoinder-affidavit is a copy of the assessment order dated 27-3-1956. The petitioner's share in the income of the firm was specified in tba order. The endorsement at the foot of Annexure RA-1 indicates that a copy of the assessment order dated 27-3-1956 was sent to respondent No. 1 on 3-4-1959. All these documents filed by the petitioner indicate that the necessary material was available to respondent No. 1 by 27-3-1960. It is not clear why respondent No. 1 declined to pass the necessary order for rectification in favour of the petitioner.
8. We have shown that the petitioner was entitled to have a rectification order passed in his favour. That was not done. The omission of respondent No. 1 to pass the necessary order for rectification has been prejudicial to the petitioner. Prima facie the petitioner is entitled to have suitable directions issued by this Court to respondent No. 1.
9. Mr. Gopal Behari for the respondents urged before us that no intervention of the Court is called for in these cases. Firstly, he urged that the writ petitions are belated. He points out that the assessment order was passed in December 1955. Rectification ought to have been done by March 1960. The present writ petitions were moved on 12-1-1967 several years after the passing of the assessment orders. It is true that several years have elapsed since the passing of the assessment orders and 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 27-10-1966 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 12-1-1967. There is sufficient ground for condoning delay in moving the writ petition.
10. Secondly, Mr. Gppal Behari urged that the period of limitation under Section 35 of the Act is four years. That period expired in March 1960. It is not now possible for the Court to intervene in the matter.
11. In Kadirvel Nadar v. State of Madras : 46ITR251(Mad) it was explained that Section 34 of the Madras Agricultural Income-tax Act merely lays down a period within which proceedings under the Section should be commenced. If the proceedings commenced within the period prescribed in the Section, the power of the Commissioner under the Section can be exercised at any time thereafter. It is not necessary that the power should be exercised within the period fixed in the section.
12. In Commissioner of Income-tax, West Bengal v. Duncan Brothers : 28ITR427(Cal) Calcutta High Court had to examine the provisions of Section 66 (1) of the Indian Income-tax Act. It was held that the provision to the effect that the Appellate Tribunal shall within 90 days of the receipt of an application draw a statement of the case and refer it to the High Court is not mandatory. The reference made by the Tribunal to the High Court is not incompetent merely because it was made after the expiry of 90 days from the date of receipt of an application by the assessee. Where the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of that duty would work serious general inconvenience or injustice to persons who had no control over those entrusted with the duty, and at the same time would not promote the main object of the legislature, such provisions should be construed as being directory only and not imperative.
13. In All India Ground Nut Syndicate Ltd. v. Commr. of Income-tax : 25ITR90(Bom) 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'.
14. In Rajagopala Chettiar v. 4th Income-tax Officer (1968) 67 ITR 230 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.
15. In Rex v. Hanley (1912) 3 K. B. 518 it was observed at page 531 that,
'a mandamus will lie to compel the performance of a public duty by a public officer although the time prescribed by statute for the performance of it has passed'.
16. In Halsbury's Laws of England 3rd Ed. Vol. XI it is observed on pages 91 and 92 under paragraph 172 that
'if public officials fail to perform any public duty with which they have been charged, an order of mandamus will lie to compel them to carry out even though the time prescribed by statute for the performance of the duty may have passed'.
17. In the present case the rules of limitation are contained in Sub-sections (1) and (5) of Section 35 of the Act. The material words in Sub-section (1) are:
'. . . . .shall within the like period rectify any such mistake which has been brought to his notice by an assessee'.
These words require that the officer must rectify if the mistake has been brought to his notice by the assessee. In the instant case the assessee did bring the mistake to the notice of respondent No. 1. It was the duty of respondent No. 1 to make the necessary correction in the initial assessment order. By omitting to carry out the necessary correction, respondent No. 1 cannot defeat the rights of the assessee. If respondent No. 1 failed to carry out his duty at the proper time, this Court can give the appropriate direction to respondent No. 1 to do the needful now. There is, therefore, no difficulty in this Court's giving necessary direction to respondent No. 1 to make the necessary rectification at this late stage.
18. These three connected petitionsare allowed. We direct respondent No. 1to pass necessary orders for rectificationunder Section 35 of the Indian Income-taxAct, 1922 and modify the assessment orderpassed against the petitioner in December 1955. In each case the petitioner shall get Rs. 100/- as costs from respondent No. 1.