Zoramaprasada Rao, J.
1. The petitioner is aggrieved by the notice issued by the respondent under Section 15(4) read with Section 16 of the Expenditure-tax Act, 1957, and seeks a writ of prohibition preventing the respondent from making a revised assessment on the petitioner. The petitioner and his four sons constitute a joint Hindu family. There was a partition in the family in June, 1957. After the partition, the petitioner claims that he has been returning his income and his wealth as an individual and was assessed as such. He performed his daughter's marriage on September 2, 1960, and spent a sum of Rs. 25,631 in connection with it. In addition to such an expenditure incurred by him, his four sons spent from the assets allotted to them a total sum of Rs. 61,292 for the said marriage. During the assessment proceedings under the Expenditure-tax Act, the petitioner's case is that every available material was placed before the assessing officer and it was contended that only a sum of Rs. 25,631 incurred by the petitioner in connection with the marriage of his daughter should be taken into account for purpose of assessment under the Expenditure-tax Act. The Expenditure-tax Officer, however, was of the view that the expenses incurred by the sons from the assets allotted to them in the partition during the accounting year ending March 3, 1961, were also includible in the taxable expenditure of the assessee. In these circumstances the total taxable expenditure was determined at Rs. 70,851 and the expenditure-tax payable thereon at Rs. 41,851. On appeal, the petitioner was successful. The department preferred a further appeal to the Income-tax Appellate Tribunal, Madras. The Tribunal confirmed the Appellate Assistant Commissioner's order and gave relief to the assessee. The Tribunal's view was that the expenditure incurred by the assessee's sons was under their own obligation and not in respect of any obligation towards the assessee. T'he Tribunal's order dated March 3, 1965, remained Unchallenged. On July 15, 1965, the Expenditure-tax Officer proposed to reopen the assessment for the assessment year 1961-62, purporting to act under Section 16 of the said Act and purported to include the expenditure incurred by the assessee's sons in connection with the marriage of the assessee's daughter as a taxable expenditure in the hands of the assessee. The petitioner submitted his objections to the proposal and desired that such a reopening may not be undertaken. But the assessing officer, by his letter dated September 16, 1967, once again in exercise of his powers under Section 16 of the Act, intimated the assessee that he had the jurisdiction to reopen the assessment and called upon the assessee to file a return under Section 15(4) of the Act. Aggrieved by this notice, the petitioner has come up to this court for the issue of a writ of prohibition.
2. In the counter-affidavit it is stated that the original assessing officer acted under and applied Section 4(i) of the Act and that the later opinion held by the appellate authority and the Tribunal were effectually, a refusal to exercise jurisdiction when they were obliged to do so in law. As the expenditure incurred by the petitioner's sons who were his dependants in the eye of law, which fact is not seriously disputed, fell squarely within the provisions of Section 4(ii) of the Act, the department had to bring to tax the escaped turnover. No doubt, the reopening was on information obtained by the assessing, officer from the Commissioner of Income-tax. The department's case is that the respondent considered the position in the light of Section 4(ii) of the Act and arrived at the reasonable belief that the expenditure which ought to have been included in the petitioner's assessment had escaped assessment. In the earlier proceedings the applicability of Section 4(i) of the Act was in issue, whereas the subject-matter of the present intended proceedings is altogether different and it is one considered in the light of Section 4(ii) of the Act. The rule of finality urged by the petitioner is not applicable to the instant case. As a reasonable belief has been entertained that there has been an escapement of tax in not appreciating the correct content of Section 4(ii) and as such a reasonable belief and information can be the basis for reopening proceedings under Section 16, the 'claim is that there is no basis for the request for the issue of a rule of prohibition.
3. In reply, the petitioner's case is that the department having contendedonce that the proper section applicable to the subject-matter is Section 4(i)of the Expenditure-tax Act, it cannot turn round and contend that Section 4(ii) is applicable and plead its own default in not applying the correctsection as a ground to start reassessment proceedings. In this view theinterdict against further processing of the notice is justified.
4. As a writ of prohibition is asked for, I am not inclined to go into the merits, since the assessee, if he fails in these proceedings, will still have an adequate opportunity to place such material before the department and get an adjudication thereon. The only question which has to be decided is whether a writ of prohibition should issue and the respondent be injuncted at the threshold from proceeding with the enquiry as initiated by him under the challenged notice. Writ of prohibition is not a writ of right, nor is it issued as a matter of course. The circumstances which normally warrant the issue of such an extraordinary rule is the discovery of want of jurisdiction Or an attempt to usurp jurisdiction when the quasi-judicial tribunal has none and when it is against all principles of natural justice. The question of jurisdiction or want of jurisdiction looms large in the instant case. I intend, therefore, finding whether there is such jurisdiction in the respondent which would justify the issuance of the challenged order and the further proceeding of it in a manner known to law.
5. The relevant provisions of the Expenditure-tax Act, 1957, may be noticed. 'Expenditure' in Section 2(h) means any sum spent in the discharge of a liability incurred by an assessee and includes any amount which under the provisions of the Act is required to be included in the taxable expenditure. Section 3 is the charging section which provides for the levy of a tax known as ' expenditure-tax ' in respect of the expenditure incurred by any individual or Hindu undivided family. Section 4 sets forth the circumstances in which an amount of money is required to be included in the taxable expenditure. Section 4 runs as under :
' 4. Amount to be included in taxable expenditure.--Unless otherwise provided in Section 5, the following amounts shall be included in computing the expenditure of an assessee liable to tax under this Act, namely :--
(i) any expenditure incurred, whether directly or indirectly by any person other than the assessee in respect of any obligation or personal requirement of the assessee or any of his dependants to the extent to which the amount of all such expenditure in the aggregate exceeds Rs. 5,000 in any year;
(ii) where the assessee is an individual, any expenditure incurred by any dependant of the assessee, and where the assessee is a Hindu undivided family, any expenditure incurred by any dependant from or out of any income or property transferred directly or indirectly to the dependant by the assessee.
Explanation.--For the removal of doubts it is hereby declared that nothing contained in this section shall be deemed to require the inclusion in the expenditure of the assessee of any expenditure incurred by any other person for or on behalf of the assessee by way of customary hospitality or which is of a trivial or inconsequential nature.'
6. Section 16 deals with expenditure escaping assessment. The text of this section is similar to the text of Section 34 of the Indian Income-tax Act. The primordial basis for such reopening is that the Expenditure-tax Officer should have, in consequence of any information in his possession, reason to believe that the expenditure chargeable to tax has escaped assessment in any assessment year. Section 16(a) provides for a particular circumstance whereunder such a reopening can be undertaken. Section 16(b) provides for such invocation of jurisdiction notwithstanding Section 16(a). Therefore, if there is information and in consequence thereof the assessing officer entertains a reasonable belief that there has been an escapement of assessment, he has the jurisdiction under Section 16(b) to issue the notice and proceed with the enquiry.
7. The case of the petitioner is that, as the earlier proceedings which concluded in a final order of assessment proceeded on the footing that it was Section 4(i) that was applicable and as the department also based its contentions on the said basis, the consequential order of the Income-tax Appellate Tribunal passed in 1965 has become final and, therefore, the same subject-matter cannot be seen once again for purposes of re-adjudication as it is prohibited on the principle of res judicata. Reliance is placed upon the decision in Commissioner of Income-tax v. Rao Thakur Narayan Singh, : 56ITR234(SC) . That was a case where the Supreme Court said that the taxing officers cannot reopen final decisions made against the revenue in respect of questions that, directly arose for decision in earlier proceedings. In those circumstances, the court said :
'If that were not the legal position it would result in placing anunrestricted power of review in the hands of the Income-tax Officer to gobehind the findings given by a hierarchy of Tribunals and even those of theHigh Court and the Supreme Court with his changing moods.'
8. Therefore, the essential principle as to the rule of finality is that the assessing officer cannot change his mood and try to reopen a closed state of affairs. But, if it is a case where the reopening is sought in consequence of information in his possession which leads to a reasonable belief that there has been an escapement and if that information is not the product of a change in his mood, but is attributable to concrete material noticed by him, then the principle in the above case may not apply. Undoubtedly, the principle of res judicata or the rule of finality, which also applies to proceedings under taxing statutes, is a rule of prudence. However legalistic the norm of finality is and ought to be acknowledged to be, yet if by the application of the provisions of a particular taxing law, which was not put directly in issue in the earlier proceedings, the reopening of a closed assessment is possible and if that is the process which is adopted by the revenue by invoking jurisdiction Under Section 16 of the Expenditure-tax Act, then the furtherance of such proceedings cannot be stopped at the threshold by the issue of a rule of prohibition. Certainly this cannot be done on the principle of the rule of finality, because the subsequent recourse to Section 16 of the Expenditure-tax Act, in the instant case, is one which, if available to the assessing officer, cannot be lightly interfered with at the inception. The claim of the revenue is that the Commissioner of Income-tax brought to the notice of the assessing officer a decision of the Andhra Pradesh High Court in His Highness Prince Azam Jah v. Expenditure-tax Officer, Hyderabad,  54 I.T.R. 15--fully reported in : 55ITR230(AP) , whereunder such expenditure incurred by the assessee's sons was to be legitimately considered as expenditure incurred by the assessee, the same having been incurred by the dependants of the assessee. Undoubtedly, this information would fall within the meaning of Section 16(b) and the action that followed is in consequence of it. It cannot be said that as a result of such information in his possession, he cannot reasonably believe that the expenditure chargeable to tax has escaped assessment. This is not a case where he changed his mood or opinion, but this is a case in which he is bona fide channelising his action within the compass of statutory provisions and if he does act in the way he purports to do in this case, it would not be proper to injunct him at this stage by the issue of a rule of prohibition. But, the argument is that on the earlier occasion the revenue took up a definite stand that the expenditure was includible and chargeable under Section 4(i) and it was in the conspectus of such events that the proceedings culminated finally with the decision of the Income-tax Appellate Tribunal, It is urged that the earlier stand that the expenditure was chargeable under Section 4(i) cannot lightly be given the go-by and Section 4(ii) invoked for purposes of reassessment. Subsections (i) and (ii) of Section 4 of the Expenditure-tax Act projects two different situations. If by a wrong application of a statutory provision a conclusion or decision is arrived at and if it is discovered later that both the Tribunal noticing such situation as well as the counsel for the revenue who argued the same misapplied the law and did not understand the purport and content of the correct law which is applicable to the facts and circumstances of the case, then it cannot be said that the revenue is by and large, prevented for ever from undertaking a re investigation into the position and apply the correct provision of law and arrive at the true legal conclusion on the merits of that case. It cannot be said that on the merits there was a decision under Section 4(ii) of the Act. If an attempt has been made by the revenue to reopen the proceedings under Section 4(1) under some pretext or other, then probably there would be much force in the contention of the petitioner. On the other hand, if the revenue's case, as it is now, is to apply the correct provision of law, namely, Section 4(ii) of the Act, and the application is necessitated by reason of information secured by the assessing officer long after the earlier proceedings reached the end, and if on that information a belief is entertained that tax has escaped, it would not be legal for courts to apply the principle of res judicata in those circumstances. What is attempted by the revenue now is to apply Section 4(ii) and find whether the expenditure incurred by the sons of the assessee would amount to taxable expenditure and if it does to include it as such in the asssssee's return by invoking Section 16 of the Act. In these circumstances, I am unable to accept the first contention of the learned counsel that there is total absence of jurisdiction on the part of the revenue since the earlier proceedings should be deemed to govern the situation and the later proceedings should be held to be barred by the doctrine of res judicata.
9. The main contention which was argued at length before me was that even in the alternative it cannot be said that the revenue in the circumstances of the case can reopen such a closed assessment under Section 16(b) of the Act, because such an assumption of jurisdiction when the circumstances do not warrant is by itself not legal and, therefore, has to be stopped. There are not many decisions under Section 16 of the Expenditure-tax Act. Therefore, the Bar had to cite citations under the Income-tax Act of 1922 with particular reference to Section 34 of the Act of 1922 and Section 147 of the Act of 1961. On this subject eminent judges have entered the labyrinth by the same path but came out through different avenues. The abundance of judicial authority on this subject which sometimes appear to be varying in scope has certainly set guidelines which can be usually applied. Precedents on this subject are so many that I am inclined only to consider a few so as to appreciate the contentions of parties.
10. At one time it was thought that the power to reassess was available to the revenue only in a case where the record projects a lacuna attributable to a cause or circumstance other than that referable to the conduct, of the revenue. The above observation of Jagannadhadas J. in Chatturam Horliram Ltd. v. Commissioner of Income-tax, : 27ITR709(SC) has been fully explained in a later decision in Maharaj Kumar Kamal Singh v. Comissioner of Income-tax, : 35ITR1(SC) . The Supreme Court, in the latter case, said :
'.....'escape' in Section 34(1)(b) was not confined to cases where no return had been submitted by the assessee or where income had not been assessed owing to inadvertence or oversight or other lacuna attributable to the assessing authorities; even in a case where a return had been submitted, if the Income-tax Officer had erroneously failed to tax a part of the assessable income, it was a case, where that part of the income had escaped assessment.'
11. Therefore, it is clear that even if there is a laches in the conduct of the revenue, if factually an escapement is discoverable then also a reopening of closed assessment is possible. From a purely common sense point of view, the word ' escapement ' had been understood to engulf a case where the Income-tax Officer failed to tax a part oi the income even though the necessary returns were filed by the assessee and they were before the officer when he passed the earlier order. In Maharajadhiraj Sir Kameshwar Singh v. State of Bihar, : 37ITR388(SC) the Agricultural Income-tax Officer omitted to bring to tax in the original assessment an item of income under the belief that it was exempt. The Supreme Court said that the non-assessment of such, income in the first instance did not prevent the assessing officer to assess the same under provisions similar to the one under review when it was reopened on the ground of escapement.
12. Then the question arises as to what is the true content of the word ' information ' which forms the bedrock for the due exercise of power to act under Section 34 of the Income-tax Act or Section 16 of the Expenditure-tax Act. So long as the attitude of the Income-tax Officer doss not amount to a voluntary change of opinion or moods, power is still available and is not exhausted: vide Commissioner of Income-tax v. Dinesh Chandra H. Shah, : 82ITR367(SC) , where the Supreme Court left open the question whether an inadvertent omission in the original assessment can justify the reopening of the assessment under Section 34(l)(b) on its subsequent discovery by the Income-tax Officer. It is now settled that the source of information need not be always extraneous to the concerned record. An apparent error looming large in the record and which has escaped unnoticed can prompt the Income-tax Officer to act under Section 34(1)(b) of the Act. In Salem Provident Fund Society Ltd. v. Commissioner of Income-tax, : 42ITR547(Mad) the court said that the information which the Income-tax Officer might secure may be on his own volition or it might have been transmitted to him by some one else. So long as information is made available or found and, if on that basis, a belief is entertained that there was an escapement, the action under Section 34(1)(b) is competent. In Anandji Haridas and Co. (P.) Ltd. v. S. P. Kushare, Sales Tax Officer, Nagpur, : 1SCR661 , the Supreme Court confirming its earlier view in Commissioner of Income-tax v, Narsee Nagsee and Co., : 40ITR307(SC) said :
' All these cases show that the words ' escaping assessment' apply equally to cases where a notice was received by the assessee but resulted in no assessment at all and to cases where due to any reason no notice was issued to the assessee, and, therefore, there was no assessment of his income.'
13. In the very same decision the Supreme Court reiterated the principle that 'information ' includes information as to the true and correct state of the law and so would cover information as to the relevant judicial decisions as well. In fact, in Salem Provident Fund Society Ltd. v. Commissioner of Income-tax our High Court was of the view that if a mistake in the original order of assessment is brought to the notice of the Income-tax Officer by a superior officer, even that would appear to be information disclosed to the Income-tax Officer. The only interdict evolved, again by precedents, against the invocation of such a power to revise, appears to be that in the first instance all cogent material was available and made available and a reasonably well-instructed officer could not have avoided to bring to tax all such disclosed assessable income. But, this rule of prudence is again made subject to a rule of caution, namely, that such a discovery as to taxability and payability in the earlier proceedings need not be after an incised probe into the material on record or after undertaking what is popularly known as a research on the subject-matter: see Commissioner of Income-tax v. A. Raman and Co., : 67ITR11(SC) . A superficial but a reasonable examination of the record should project a true picture as to the liability for tax and if it is so clinchingly clear, then an attempt to reopen later on the ground of escapement of tax is discouraged. But, if the escapement is as a result of misapplication of law or misunderstanding of the charging provisions and if such a state of affairs is brought to the notice of the original authority, that would be still ' information ' within the meaning of the section for him to act under Section 34 of the Income-tax Act or Section 16 of the present Act. As information secured or obtained may be both introvertiye and extrovertive, so long as the position is explained on the ground that the supervening information legitimately prompts him to reopen the closed assessment, then that would be a case where the assessing authority is acting within his jurisdiction and he cannot be lightly asked not to further the notice issued by him by making such enquiries as he deems fit and pass an order thereon. The assessing authority to gain entitlement to act under Section 34, should only act reasonably and should not give the impresssion that he was arbitrarily exercising such power without laying the requisite foundation for reopening. In 'Kasturbhai Lalbhai v. R. K. Malhotra, Income-tax Officer, : 80ITR188(Guj) , the learned judges explained the position clearly thus:
''Information', in the context in which it occurs in Section 147(b) of the Income-tax Act, 1961, must mean ' instruction or knowledge derived from an external source concerning facts or particulars, or as to law relating to a matter bearing on the assessment'. Mere change of opinion on the part of the Income-tax Officer cannot constitute information so as to entitle him to initiate proceedings under Section 147(b). If the information is as to any fact, it may be received from any person who knows the fact, and it cannot be limited to any particular person, body or authority since such fact may be within the knowledge or possession of any one and it may be received by the Income-tax Officer from any source. But, in the case of information as to the correct state of the law, the external source from which it may be received must necessarily be of a limited character. Though it may not be possible to define precisely the cases where intimation received by the officer as to the correct state of the law may be regarded as information, opinion as to the state of the law by any and every person cannot constitute ' information ' for the purpose of the section. It must be a statement or the expression of the correct state of the law by a person or body or authority competent and authorised, to pronounce upon the law so that it is invested with some definiteness and authority.'
14. In the conspectus of such well laid theories as to reopening of assessments, the question for consideration in the instant case'is whether the supervening judicial precedents, which are bound to be noticed by the assessing authority and which are admittedly pronounced by appropriate and competent tribunals, could be the basis for the reopening of assess? ment in the instant case. In the instant case the revenue proceeded on the basis that one limb of Section 4 of the Expenditure-tax Act was the correct law applicable to the facts of the case. But, on the same set of facts, the Andhra Pradesh High Court considered in His Highness Prince Azam Jah v. Expenditure-tax Officer, Hyderabad, that Section 4(ii) of the Act was the proper section which has to be invoked for purposes of assessment, That there was such an authoritative pronouncement of a competent authority was brought to the notice of the Expenditure-tax Officer by the Commissioner of Income-tax. In a case where the Income-tax Officer proceeded on the footing that the appellant was a partner in an establishment and interest had been received by him in the capacity of a partner and when it was brought to its notice that the Tribunal held that such receipt was not in the capacity of partner of the establishment but in the capacity of a financier advancing moneys to it, the Supreme Court in R. B. Bansilal Abirchand Firm v. Commissioner of Income-tax, : 70ITR74(SC) said:
' It the facts had been properly considered at the time of the first assessment, the Income-tax Officer might have discovered the correct position and might have come to the conclusion that the assessee-firm was not receiving interest as a partner, but the circumstance that such a decision could have been arrived at did not mean that, at the time when the Incomer tax Officer started proceedings under Section 34(1)(b), he was not acting on information received from the decisions of the Tribunal and the High Court in the assessment proceedings of Bisesar House, This was not a case where the Income-tax Officer on his own initiative and on the material which was before him at the time of the first assessment changed his opinion and came to a different conclusion. The correct conclusion was brought to his notice by the decision of the Tribunal and the High Court and that was information as a consequence of which he came to believe that the provisions of Section 34(1)(b) were attracted. The Income-tax Officer had, therefore, jurisdiction to issue the notice under Section 34(1(b).'
15. In Assistant Controller of Estate Duty, Hyderabad v. Nawab Sir Mir Osman Ali Khan Bahadur, H.E.H. The Nizam of Hyderabad, : 72ITR376(SC) , which arose under the Estate Duty Act, 1953, the Supreme Court had once again the opportunity to consider the content of the word 'information'. They said:
' The opinion of the Central Board of Revenue regarding the correct valuation of the securities for purposes of estate duty expressed in an appeal prepared by the accountable person, is ' information' within the meaning of Section 59 of the Estate Duty Act, 1953, as amended by the Estate Duty (Amendment) Act of 1958, on the basis of which the Controller can entertain a reasonable belief that property assessed to estate duty has been under-valued.'
16. The force of the march of law as compiled above does not prompt me to make the rule nisi absolute. But Mr. Swaminathan forcibly contends that the Income-tax Officer is expected to know the taxing law and he ought to have applied the correct provision of law. Ignorance of law undoubtedly is no excuse. But misapplication of law is not inexcusable. The result of misapplication of law is that an error by inadvertence has been committed. In such circumstances, the error can be corrected in a manner known to law. It is impossible to compel one. who is unwilling to disobey law to contravene it. If, thefefore, Section 4(i) was mistakenly invoked fey the revenue on an earlier occasion and if such invocation was discovered later, no one can compel a statutory body to take such a circumstance lying and ignore the impact of Section 4(ii) and the force of its application. In any event the respondent cannot be interdicted at the threshold from proceeding with the enquiry. The well-known rule of law is that, he does contrary to the law who, does what the law prohibits. Here the law persuades the original authority to act under Section 16 and reopen the assessment which was mistakenly concluded by applying Section 4(i). He has secured the necessary information and in consequence entertained the belief that there has been an escapement of tax. As law does nothing in vain and as the postulates in Section 4(i) and Section 4(ii) are distinct and separate, the application of one of such charging provisions cannot preclude the tax collector from applying the other taxing provision if the necessary foundation to act is laid. I have already said that the conditions requisite for the reopening of an assessment are available in the instant case. The doctrine of escapement of tax is not to be degenerated into a hard and fast rule as is normally understood. If circumstances warrant the bona fide exercise of power by the statutory authority for reopening an assessment, though clothed under a different set of circumstances, by applying the correct provision of law, courts are reluctant to stop that process by issuing a rule of prohibition. The jurisdiction for the grant of a writ of prohibition is referable to the visitorial jurisdiction of this court and its main object is to restrain tribunals from exercising a jurisdiction which they do not have or to prevent them from exceeding their limits of jurisdiction. The want of jurisdiction should be equable to coram non judice. Then only a writ of prohibition will issue on the ground of patent want of jurisdiction. All these essential ingredients for the issue of a rule are not present in the instant case. In the light of the facts and circumstances of this case and having regard to the well-known judicial principles under which a reopening of a closed assessment is undertaken, I am unable, in my discretion, to make the rule nisi absolute and prevent the respondent from processing further the impugned notice issued earlier. The writ petition is dismissed, but there will be no order as to costs.
17. All legal pleas including the plea that the petitioner is still a member of the joint family are available and could be placed before the officer who is to adjudicate pursuant to the notice challenged herein.