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TMI Blog1961 (1) TMI 75X X X X Extracts X X X X X X X X Extracts X X X X ..... for registration in 1951-52 but that was also refused. Registration was refused for 1952-53 and 1953-54 and the unregistered firm was assessed on its income. As Arulanandam had no separate income apart from his share income of the partnership, no assessment was levied on him in the assessment years 1952-53 and 1953-54. Those assessment orders on Arulanandam were completed on February 24, 1955, and in both the years his status was determined as resident and ordinarily resident , though he had himself claimed that his status was that of a non-resident. In refusing registration for the two assessment years 1952-53 and 1953-54, what the Income-tax Officer recorded was: In connection with the 1949-50 assessment, similar application was made but registration was refused for the reasons stated in the order under section 26A of the Act passed in that year. There are no fresh facts now, and the position remains the same. For the reasons stated therein, I am unable to allow registration applied for. Subsequent to the termination of these proceedings, as we have pointed out earlier, on June 21, 1955, the appeal preferred by the firm with reference to the assessment year 1949- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the firm, the Income-tax Officer issued notices to Arulanandam on March 27, 1957. These notices purported to be under section 35 of the Indian Income- tax Act and they called upon Arulanandam to show cause why the orders of assessment passed on him for 1952-53 and 1953-54 should not be rectified. The rectification was with reference to two points: (1) the Income-tax Officer proposed to alter the status of Arulanandam as that of a non-resident, and (2) the Income-tax Officer proposed to assess Arulanandam on his share income of the firm on the basis that the firm was a registered firm. The assessee objected to the rectification proposed by the Income-tax Officer and contended in effect that the Income-tax Officer had no jurisdiction. The objections were overruled. On June 23, 1958, the Income-tax Officer issued orders purporting to be under section 35(5) of the Income-tax Act. The assessee was assessed on his share income on the basis that the firm was a registered firm. The assessee's status was also altered to that of a non-resident. Between March 27, 1957, when notice was issued of Arulanandam, and June 23, 1958, when the orders were passed under section 35(5) of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner, it should be remembered, specifically recorded ....as the appellant has withdrawn these appeals....I treat these appeals as having been dismissed. No doubt, the Appellate Assistant Commissioner also observed that these appeals had been withdrawn in view of the orders passed by the Income-tax Officer. But we have pointed out that ex facie the letter of withdrawal no reasons were assigned and there was no reference to the orders of the Income-tax Officer. Even if that had been the ground on which the firm withdrew these appeals, that would not really affect the determination of the maid questions at issue or alter the position that the appeals preferred by the assessee were in form and in substance dismissed by the Appellate Assistant Commissioner. There was no question of the Appellate Assistant Commissioner directing registration of the firm under section 26A. He pointed out that the registration had already been granted by the Income-tax Officer. The Assistant Commissioner was inclined to doubt whether the Income-tax Officer had jurisdiction to grant registration in the circumstance under which he purported to grant the registration. But the Appellate Assistant Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith reference to the assessment years 1952-53 and 1953-54 was also wrong. The appeals, it should be remembered, preferred against the Income-tax Officer's orders were still pending on March 29, 1956. They were withdrawn and dismissed only subsequently, on July 5, 1956. What section 35(1) authorised the Income-tax Officer to do was to rectify a mistake apparent on the face of the record. Now, what the Income-tax Officer did was to set aside his previous orders refusing the registration for the assessment years 1952-53 and 1953-54 and issue revised orders. Independent of section 35, the Income-tax Officer could not claim any revisional jurisdiction to revise his own orders. It should be noticed that the Income-tax Officer himself did not purport to exercise any power under section 35(1) in directing registration of the firm in supersession of his earlier orders. We have also pointed out that no notices were issued either to the firm or to the partners before the orders dated March 29, 1956 were passed. Incidentally it should be noted that the grant of registration has affected detrimentally Arulanandam and has increased his tax liability. The Income-tax Officer himself did not pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missioner. The petitioners were entitled to treat the orders dated March 29, 1956, passed without jurisdiction as non set in law. Even independent of that, the petitioners were entitled to show in these proceedings that the orders passed under section 35, and subsequently confirmed by the Commissioner having been based upon the orders dated March 29, 1956, which were themselves passed without jurisdiction were liable to be set aside by the issue of a writ of certiorari. In our opinion, the orders passed by the Income-tax Officer purporting to be under section 35(5) were without jurisdiction. Neither section 35(5) nor section 35(1) authorised the Income-tax Officer to rectify the orders of assessment originally passed with reference to the share income of Arulanandam and Murugan. Once again we have to point out that the basis of the rectification was that subsequent to the original orders of assessment the firm had been treated as a registered firm and that view was based on the order dated March 29, 1956 which were themselves passed without jurisdiction. That is why we state that section 35(1) could not apply, and we have explained earlier that section 35(5) could not apply at a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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