This is a writ petition under article 226 of the Constitution. It arises out of assessment proceedings of a Hindu undivided family for the assessment year 1946-47. On March 12, 1949, the income of the Hindu undivided family was assessed at a figure of Rs. 5,88,100. On March 31, 1949, the assessment order was rectified and the figure of income was reduced to Rs. 5,38,100. There was an appeal by the family against the assessment and by order dated March 20, 1951, the assessment was further reduced to Rs. 4,29,325. Thereafter, the assessment was reopened under section 34 and by order dated January 29, 1952, the income of the family was computed at the figure of Rs. 4,76,309. It appears that, subsequent to this, by reason of the assessment of certain firms, from which the family derived certain share income, its income was still further reduced by a sum of Rs. 55,116. This necessitated the rectification of the order dated January 29, 1952. By order dated November 18, 1955, the Income-tax Officer, instead of rectifying the order dated January 29, 1952, erroneously rectified the order determining the income of the family consequent upon the order of the Appellate Assistant Commissioner, dated March 20, 1951. When this error was subsequently discovered, the Income-tax Officer issued a notice under section 35 on September 7, 1959, proposing to correct the error which had been committed in making the rectification on November 18, 1955. In this notice it was stated that the sum of Rs. 55,116 should have been deducted from Rs. 4,76,309 which had been found to be the income of the family under order dated January 29, 1952, under section 34, instead of which the amount of Rs. 55,116 had been wrongly deduced from the amount for Rs. 4,29,325, which was the income determined under the appellate order dated March 20, 1951. In consequence, it was proposed to put the figure of income at Rs. 4,20,411 instead of at Rs. 3,37,427. Upon the receipt of this notice, an objection was filed on behalf of the family on September 16, 1959, and this objection was two-fold, firstly, that the notice under section 35 was without jurisdiction and, secondly, that the rectification was barred by limitation. The objection were overruled by order dated September 19, 1959. Against this order the above writ petition was filed on October 20, 1959.
The two objections which were taken before the Income-tax Officer have been reiterated before me by learned counsel in support of this writ petition.
Before I go into these objections and decide them on the merits, I should like to observe that, so far as the exercise that, so far as the exercise of writ jurisdiction is concerned, it is well settled by decisions of the Supreme Court and of this court, that a petitioner has to make out a case, not only of an error of law having been committed by the subordinate authority or officer, however grave the error might be, or of want of jurisdiction, even though there may be total absence of jurisdiction, but he has, in addition, to show that manifest injustice has been done to him and injustice will be perpetrated if relief is not granted in the petition. I am of the view that on the facts stated above no injustice has been done to the petitioner and this petition must be dismissed on this ground alone.
There is yet another hurdle in the petitioners way. There is the existence of an alternative remedy which the petitioner has not availed of. A revision under section 33A(2) lay to the Commissioner of Income-tax against the impugned order. The revisional remedy could have been invoked on an application by the petitioner. So far as this court is concerned, it has taken the view in numerous cases that, where that revisional remedy can be involved by an application, the remedy amounts to an alternative remedy. The petitioner in this case did not have recourse to that remedy, but came to this court direct against the order of the Income-tax Officer. In C. A. Abraham v. Income-tax Officer, Kottayam, the Supreme Court has ruled in very definite terms that if a petitioner invokes the jurisdiction of the High Court under article 226 of the Constitution without exhausting the remedies open to him under the Act, he should not be allowed to do so. On this ground also the petition is liable to be dismissed.
So far as the merits of the petition are concerned, it appears to me plain upon the provisions of section 35(5) that the starting point of limitation was the date of final orders passed in the case of the firms from which the share income was derived by the family. Those dates have not been stated. Accordingly, it cannot be found that the notice dated September 7, 1959, was barred by limitation. It also appears to me that in a matter like this, apart from the provisions of section 35(5), there is an inherent power in the Income-tax Officer to correct at least such an error as occurred in this case, by reason of the fact that proceedings before an Income-tax Officer are judicial proceedings and partake of all the incidents of such proceedings : vide Suraj Mall Mohta v. A. V. Visvanath Sastri. The possession of an inherent power of correction of an inadvertent error is one of the incidents of such proceedings. The Income-tax Appellate Tribunal was held to possess such power in Shri Bhagwan Radha Kishen v. Commissioner of Income-tax. It follows that the rectification of the mistake committed by the Income-tax Officer could properly be made by him by the impugned order.
The writ petition has no force and it is hereby dismissed with costs.