S.K. Kapur, J.
(1) The facts of this case have been set out in great detail by the learned Single Judge and the facts relevant for the purpose of this appeal admit of statement in a very moderate compass. We are concerned in this case with the assessment year 1946-47, the relevant accounting period being 16-10-1944 to 4-11-1945. Firm Jankidass Banarsidass was started in 1940 with btoh the appellants as the partners, Appellant Banarsidass had -/11/- share while his brtoher Phool Chand had -/4/- share in profits of the firm. The remaining -/1/- was being set apart for charity. The firm was registered under the Indian Income Tax Act, 1922 for the relevant assessment year.
The assessment of the firm was completed for the said year on 5th August, 1946 and income assessed at Rs. 6,644. The income of the partners was then assessed separately in accordance with clause (a) of sub-section (5) of Section 23 of the Indian Income Tax Act, 1922, (hereinafter referred to as the said Act). Banarsidass's income was determined at Rs.9,352 and that of Phool Chand at Rs.18,105. These amounts included their share of profit in the firm. It is alleged in the writ petition that subsequently in proceedings under section 34 of the said Act, the income of appellant Banarsidass was increased to Rs.10,819 on 27-12-1951 and that of appellant Phool Chand to Rs.18,747 on 16-5-1951. The firm is alleged to have been dissolved on 28-10-1952 by a deed of dissolution.
The appellants claim that in their return for the assessment year 1953-54 filed on 19-1-1953, it was stated at the foto of the return that the old firm had been dissolved. A new firm was allegedly constituted with Jeewan Ram, Banarsidass, Phool Chand and Mandirdass as partners under a partnership deed executed on 19-1-1953. It appears that on 29th March, 1955,proceedings were taken under section 34 of the said Act with a view to reopening the assessment of the firm with respect to the year in question and it is on that date that a ntoice under section 34 of the said Act was issued to the firm. The allegation of the revenue was that the Fixed Deposit Receipt of about Rs. 3 lacs issued by the firm represented its profits.
In pursuance of the said ntoice under section 34, the income of the firm was increased by Rs.3,35,000 (Rupees three lacs thirtyfive thousand only). This re-assessment was made on 22nd March, 1956. On 5-5-1956, an order made under section 35 (5) of the said Act for rectification whereby the individual assessment of the partners was rectified to accord with the revised assessment of the firm. The learned Single Judge, dealing with the writ petition, observed 'it is a common ground that the proceedings under section 34 should have been initiated up to the 31st March, 1955, according to the unamended provisions of law which govern this case.' This statement of law has nto been challenged before us and I need nto dilate upon the same.
The learned Single Judge, however, rejected the writ petition by his order dated the 29th December, 1961 on the short ground that the assessed had an alternative legal remedy. The learned Judge drew distinction between cases in which an assessed moves the High Court under Article 226 of time constitution immediately after the receipt of the ntoice under Section 34 and where he waits till the assessing authorities have made assessments. In this view the latter type of cases did nto call for interference in exercise of power under Articles 226 of the constitution. While dealing with one of the contentions of the appellants, namely, that their assessments having been completed before 1-4-1952 from which date section 35(5) of the said Act came into force, the same could nto be rectified under that provision, observed 'concededly, the orders passed by the Tribunal Annexures Q1 and Q11 (being the orders made by the Income-Tax Appellate Tribunal on appeals by the appellant challenging the rectification orders under section 35(5)), on 21st August, 1958 do nto furnish a bar to the present proceedings.'
It is necessary to point out that sub-section (5) of section 35 was introduced by section 19 of the Indian Income Tax (Amendment) Act, 1953 of (Act Xxv of 1953) with effect from the 1st April, 1952. The said sub-section reads as under:-
'where in respect of any completed assessment of a partner in a firm it is found on the assessment of re-assessment of the firm or on any reduction or enhancement made in the income of the firm under Section 31, Section 33, Section 33-A, Section 33B, Section 66 or Section 66A that the share of partner or, if included, is nto correct, the inclusion of the share on the assessment or the correction thereof, as the case may be, shall be deemed to be a rectification of a mistake apparent from the record within the meaning of this section, and the provisions of sub-section (1), shall apply thereto accordingly, the period of four years referred to in that sub-section being computed from the date of the final order passed in the case of the firm.'
Since it will become necessary while dealing with a decision of their Lordships of the Supreme Court in Ahmedabad . v. S. G. Metha, I. T. Officer : 48ITR154(SC) to refer to Section 35 (10) of the said Act it is relevant to point out that sub-section (10) of section 35 was inserted by section 19 of the Finance Act 1950 with effect 1st April, 1956 and reads as under:
'Where in any of the assessment for the years beginning on the 1st day of April of the years 1948 to 1955 inclusive, a rebate of income-tax was allowed to a company on a part of its ttoal income under clause (I) of the proviso to Paragraph B of Part 1 of the relevant Schedule to the Finance Acts specifying the rates of tax for the relevant year, and subsequently the amount on which the rebate of income-tax was allowed as aforesaid is availed of by the company, wholly or partly for declaring dividends in any year, the amount or that part of the amount availed of as aforesaid, as the case may be, shall, by reason of the rebate of income-tax allowed to be company and to the extent to which it has nto actually been subjected to an additional income-tax in accordance with the provisions of clause (ii) of the proviso to Paragraph B of Part1 of the Schedules to the Finance Act above referred to, be deemed to have been made the subject of incorrect relief under this Act, and the Income -tax Officer shall recompute the tax payable by the company by reducing the rebate originally allowed, as if the recomputation is a rectification of a mistake apparent from the record within the meaning of this section and the provisions of sub-section (1) shall apply accordingly, the period of four years specified therein being reckoned from the end of the financial year in which the amount on which rebate of income-tax was allowed as aforesaid was availed of by the company wholly or partly for declaring dividends.'
It is on these facts that Mr. Chadha, the learned counsel for the appellants, has raised the following contentions:
(i) The question of proper service of ntoice under section 34 of the said Act being a question of jurisdiction, the learned Single Judge should nto have rejected the petition on the ground of the existence of an alternate remedy.
(ii) The firm having been dissolved, as stated earlier, it could nto be assessed after dissolution.
(iii) Having regard to the provisions of section 63 of the said Act read with Order 30 Rule 3 and Order 5 Rule 17 of the Civil Procedure Code, there was no valid service of ntoice under section 34.
(iv) No ntoice under section 34 of the said Act was served on any of the partners.
(v) The assessment of the appellants for the said assessment year 1946-47 having been completed before 1-4-1952, the date when section 35(5) of the said Act came into force, the individual assessment of the appellants could nto be rectified in exercise of power under that sub-section.
(2) So far as the first point is concerned, there is no such absolute rule that if a question of jurisdiction is raised, the Court must interfere in exercise of power under Article 226 of Constitution. Each case has to be judged on its own merits having regard to the facts and circumstances. When considering such a question the Courts do bear in mind that the greatest danger to the rights of the subjects lurks in the insidious invasions made sometimes by the over-zealous revenue authorities, though acting perfectly bona fide. For purposes of disposing of the 2nd and the 4th contentions, it is, thereforee, necessary to see the facts of the case at hand. The revenue denies that the firm was ever dissolved.
Accordingly to Mr. Kirpal, the learned counsel for the revenue, the dissolution has been put up only by way of subterfuge to avoid heavy tax liability which the firm originally managed to escape. On the ntoice issued under section 34 of the said Act on 29-3-1955, the report of the Process Server received on 30th March, 1955, disclosed that the proprietor was nto available. Under these circumstances , the service was effected on the firm by affixation. It is impossible, thereforee, to determine in these contentions facts whether or nto (i) the firm has been dissolved ; (ii) if dissolved, could it be assessed; (iii) on whom was the ntoice required to be served; and (iv) a proper ntoice was served. It is nto disputed on behalf of the appellants that the appellants had been and are still taking resource to the remedies provided under the Act. In the face of these facts the learned Single Judge quite rightly declined to pronounce on the merits of the said contentions. That takes me to the last question, namely, the validity of the rectification order passed on 5-5-1956. As I have said already, the learned Single Judge expressed an opinion that the orders of the Tribunal Annexures Q1 and Q11 dated 21st August, 1958, rejecting the appeals of the appellants challenging the rectification of their assessments did nto furnish a bar to the proceedings under Article 226 of the constitution.
The learned counsel for the revenue has pressed on us to hold that section 33A provides an effective alternative legal remedy to the assessed for challenging the rectification order. No doubt, this section confers the power of revision on the commissioner and is intended to provide administrative machinery by which a higher executive officer has been given power to review the orders of his subordinates, but in the circumstances that obtain in this case, it could hardly be termed as adequate alternate remedy. Aggrieved by the order of rectification, the appellants did have recourse to an appeal before the Appellate Assistant Commissioner. It appears from the orders of the Appellate Tribunal dated 28-1-1958 that the Appellate Assistant Commissioner did assume jurisdiction and dealt with the merits of the controversy.
The Appellate Assistant Commissioner having rejected the appellant's appeal on merits, the appellants took an appeal to the Income Tax Appellate Tribunal. The Tribunal observed 'the Appellate Assistant Commissioner erred in assuming jurisdiction which he did nto possess.' This order was passed by the Tribunal on 22-1-1958 when admittedly the remedy of revision had become barred by time. Having regard to the provisions of the said Act and particularly those dealing with the appeals, it is difficult to say that the appellants did nto bona fide take recourse to appeal proceedings, I am, thereforee, nto willing to accept the revenue's contention that section 33A of the said Act should, in these circumstances, bar a remedy under Article 226 of the Constitution.
It now remains to deal with the merits of the controversy and it is on this aspect of the case that I have felt considerable difficulty. I have already set out the contention of the appellants in this behalf. Mr. Chadha, the learned counsel for the appellants, has relied in support of the contention on two decisions of their Lordships of the Supreme Court - Income-Tax Officer, V Circle, Madras, v. S. K. Habidullah : 44ITR809(SC) and Second Additional Income-Tax Officer, Guntur v. Atmala Nagaraj : 46ITR609(SC) . In Habidbullah's case : 44ITR809(SC) , the assessed was a partner in two firms. He submitted his return of his income and incorporated therein the admitted share of his losses in the two firms at Rs. 20,000 and Rs, 10,000 for the assessment for the said two years on February 20, 1950 after adopting the estimates furnished by the assessed, but he made a ntoe that the losses accepted were subject to revision on ascertainment of the correct particulars.
The assessment of one of the firms for the assessment years 1946-47 and 1947-48 was completed on October 31, 1950 and the proportionate share of the assessed for the losses was computed at a lower figure. The assessment of the toher firm for 1947-48 was completed on June 30, 1951 and again the Income-Tax Officer computed the share of loss of the assessed at a smaller amount. As a result of the assessment of the firms, the Income Tax Officer issued on May 4, 1953 ntoices to the assessed to show cause why his assessments for the said two years should nto be rectified under section 35. The rectification order was made under section 35(5) of the said Act on March 27, 1954. The Commissioner having declined to set aside the rectification order at the instance of the assessed's son, the assessed having died by then, he filed a writ petition under Article 226 of the Constitution which was allowed by the High Court.
Their Lordships of the Supreme Court decided that (i) the mistake detected from the disposal of the case of the firm could nto be termed as a mistake apparent from the record of the assessed and (ii) that the assessments of the assessed were finalised before 1-4-1952 and the provisions of sub-section (5) of section 35 were nto so retrospective as to permit the revenue to destroy the finality gained by the said assessment orders before section 35(5) came into force. It is ntoeworthy that in this case, the assessment of the partner as well as of the firm had become final before section 35(5) of the said Act came into force. Their Lordships of the Supreme Court also expressed an opinion that the provisions enacted by clause (5) were nto procedural in character but affected the vested rights of the assesses. Towards the concluding part of the judgment, Shah, J. observed:
'The power to rectify assessment of a partner consequent upon the assessment of the firm of which he is a partner by including or correcting his share of profit or loss can thereforee be exercised only in case of assessment of the firm made on or after April 1, 1952.'
From the above observation I gather that the view expressed by their Lordships of the Supreme Court was that there the assessment of the firm took place after April, 1, 1952, the power of rectification could be exercised under sub-section (5) of section 35. His Lordship again emphasized the fact by observing:-
'The Income Tax Officer has no jurisdiction under clause (5) of section 35 of the Act to rectify the assessment of a partner of a firm consequent upon the assessment or reassessment of the firm disclosing an error made before April 1, 1952.'
Let alone this decision shows, as I have said earlier, that where rectification becomes necessary as a result of assessment or re-assessment of a firm made after 1-4-1952, section 35(5) would be operative. But then came the decision in Atmala Nagaraj's case : 46ITR609(SC) . In this case, their Lordships of the Supreme Court dealt with two appeals (i) where the respondent was an individual and (ii) where the assessed-respondent was Hindu undivided family. In btoh the cases, the original assessments of the assesseds were completed on January 22, 1952. The two assesseds held shares in two registered firms and although the assessments of the firm completed the assessment of the assesseds by taking certain amount as their share of profits in the firm. The assessments, of the firm were completed on October 16, 1954 and then it came to light that the aggregate shares of the income from the two firms in the case of each assessed were more.
After ntoice under section 35, the Income-tax Officer rectified the mistakes in exercise of power under sub-section (5) of section 35 of the said Act. In this case, thereforee, the assessments of the two firms were completed after 1-4-1952. The assesseds moved the High Court under Articles 226 of the constitution and succeeded btoh before the learned Single Judge and the divisional bench. The divisional bench of the High Court stated the following as the real point arising in the case.
'The Income Tax Officer reopened the assessments made on the partners and, thereforee, the only question that arises is whether those assessments made before April 1, 1952 can be reopened under S. 35 (5) of the Act.'
From the observation made by their Lordships of the Supreme Court, it appears that 'the learned Judges (of the High Court) did nto permit the Department to contend for the first time before them that inasmuch as the assessments of the firm were made subsequent to April 1, 1952, section 35 (5) would apply.' Hidayatullah, J. speaking for the Court decided that the assessments of the assesseds had become final before April, 1, 2952 and sub-section (5) of S.35 of the said Act had nto been made applicable to such assessments. The ultimate decision in Atmala Nagaraj's case : 46ITR609(SC) thereforee, appears to be come final before April 1, 1952, this distinction made no difference to the finality such as had been gained by the final assessment of the partner.
This case was, however, held to be concluded by decision in Habibullah's case : 44ITR809(SC) as appears from the observation of Hidauyatullah, J. that 'the question how far S. 35 (5) is retrospective and whether it would apply to original assessments completed before April 1, 1952, is no longer resintegra.' That shows that their Lordships of the Supreme Court also did nto decide the question nto permitted to be raised by the High Court, namely, the effect of the assessment of the firm having been made subsequent to April 1, 1952 which question directly arises in this case. The above decision was considered by the Supreme Court again in : 48ITR154(SC) . In that case for the assessment year 1952-53, the assessed gto a rebate of income-tax on its undistributed profits under the 1st proviso to paragraph B of Part 1 of the First Schedule to the Finance Act, 1952.
For the following assessment year, the assessed declared on 20th April, 1953 certain dividend in relation to the calendar year 1952 which was the previous year. On March 27, 1958, the Income-Tax Officer passed an order under section 35 (10) of the said Act which came into force on April 1, 1956 withdrawing the proportionate rebate on the amount of dividend declared. It was held by majority (Sarkar, Hidayatillah and Raghubar Dayal, JJ.) that sub-section (10) of section 35 properly applied to the case. It is for the proper appreciation of this decision that I chose to qutoe sub-section (10) of section 35 in the earlier part of the judgment. Das, J. Representing the minority, with whom Kapur, J. agreeed observed:
'We may point out, however, that in : 46ITR609(SC) this Court went a step further and held that sub-section (5) of section 35 was nto 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 April 1, 1952. Learned counsel for the appellant frankly conceded before us that he did nto wish to go as far as that and contend that even in a case where a declaration of the dividend was made after April 1, 1956, sub-section (10) would nto apply; because that would make sub-section (10) unworkable. The decision in : 46ITR609(SC) may perhaps require reconsideration as to which we need nto express any final opinion now; but so far as this case is concerned we see no reason why the principle in S. K. Habibullah's case : 44ITR809(SC) will nto apply.'
The decision of Das J., thereforee, was in accord with Habidullah's case : 44ITR809(SC) because the dividend had also been declared before sub-section (10) of section 35 of the said Act came into force. Sarkar J. interpreted the language of sub-section (10) and decided that the same was sufficiently retrospective to cover the case. Hidayatullah, J. construed sub-section (10) to mean that it embraced and went back to the assessment years commencing April 1, 1948, and was, thereforee, retrospective. His Lordship also expressed the view at two places that the two earlier decisions needed reconsideration. The position that, thereforee, emerges is that three of their Lordships were doubtful about the correctness of Atmala Nagaraj's case : 46ITR609(SC) .
That, however, does nto alter the law as laid down by the Supreme Court as this Court has to abide by the earlier decisions. In coming to the present conclusion I am following Habibullah's case : 44ITR809(SC) , in which the Supreme Court observed that in the circumstances that obtain in this case S.35 (5) could be applied. Section 35 (5) of the said Act empowers certain specified authorities including the Income-tax Officer to rectify a mistake in the completed assessment of a partner in a firm 'if it is necessitated on the assessment or re-assessment of the firm'. The said sub-section also talks of 'any completed assessment of a partner in a firm'. It is one thing to say as was said in Habibullah's case : 44ITR809(SC) that where btoh the assessments of a partner and of the firm are completed before 1-4-1952, section 35 (5) cannto apply.
But where the assessment or re-assessment of a firm is completed after 1-4-1952, the event which necessitates the rectification of a mistake in the partner's assessment then takes place. The object of the Legislature was to give effect to the assessment or re-assessment of the firm in the hands of the partners. toherwise assessent or re-assessment of the registered firms would have been practically useless. The said provision came on the statute book on 1-4-1952. It created the assessment or re-assessment of a firm as the event giving rise to a particular cause of action. If any re-assessment is made on April 2, 1952 and it must also be necessarily reflected in the partner's assessment made before that date.
Can it, then be said that the Legislature intended that even in cases where the crucial event takes place after April 1, 1952, the provision under consideration was nto intended to operate for some time. That interpretation will create an artifical dichtoomy even in cases where the firm is assessed or re-assessed after 1-4-1952, and thereby defeat rather than effectutate the purpose of the enactment. When the assessment or re-assessment of a firm is made, the revenue has at that time to see as to how the partner's share of the income is to be included in his assessment. He has to weigh between the two courses:
(i) Proceedings under section 34 of the said Act, and
(ii) rectifiation of a mistake under section 35 (5)
Where the subsequent event necessitating the rectification takes place after coming into force of sub-section (5) of section 35, the rectification can, in my opinion, be made under that sub-section. No doubt, section 35 (5) affects the vested rights but it apperas to have been made retroactive for the purposes of giving effect to the assessment or re-assessment of a firm. This conclusion of mine is in accord with the observations of Shah, J. in Habibullah's case which observations have already been extacted above. So far as Nagaraj's case : 46ITR609(SC) is concerned. I have already said that the enquriy into the effect of assessment of the frim having been made after 1-4-1952 was expressly shut out by the High Court and nto considered by their Lordships of the Surpeme Court.
I am unable to read the words 'in respect of any completed assessment of partner in a firm' in sub-section (5) to relate to assessment of a partner only when the same is completed after 1-4-1952 irrespective of the date of the assessment of the firm. My conclusion, thereforee, is that the Income-tax Officer rightly applied section 35 (5) in rectifying the error. This appeal, thereforee, fails and is dismissed, but having regard to the circumstances of the case, there will be no order as to costs.
Jagjit Singh, J.
(3) I agree