1967 (1) TMI 22

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..... etitioner's income and brought to tax under section 16(3) of the Income-tax Act, 1922. On this portion of the income an additional surcharge at 15 per cent. was levied, treating the same as unearned income under the provisions of the Finance Act, 1958. It is common ground now that this levy could not be supported in view of the decision in Commissioner of Income-tax v. Marimuthu Nadar. The view which found favour in this decision was also the view held earlier by this court in S. A. S. Marimuthu Nadar v. Commissioner of Income-tax. The result was that the minor's share of income was only liable to surcharge at the rate of 5 per cent. On January 10, 1962, the assessee applied to the first respondent, who was the Fourth Income-tax Officer, .....

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..... istake as in this case, might have been open to argument had it not been for Walchand Nagar Industries Ltd. v. V. S. Gaitonde, which followed Venkatachalam v. Bombay Dyeing and Manufacturing Co. Ltd. On facts and on principle it is difficult to distinguish the instant case from them and they would cover this case. But Mr. Balasubrahmanyan for the revenue contends that, inasmuch as the power to rectify a mistake could be exercised only within the period allowed to the officer concerned, no mandamus could go out to him which will have the effect of compelling him to do something beyond that period. The mistake can be rectified under section 35 within four years from the date of an assessment order. In one sense, the argument for the revenue .....

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..... ation, whether suo moto or on an application. It is doubtful, therefore, whether having regard to the language of section 35, notwithstanding expiry of the time prescribed by it, the court by its own fiat can compel him to go outside the limits prescribed by the legislature. As a matter of fact, we find that in Venkatachalam v. Bombay Dyeing Manufacturing Co. Ltd. and Walchand Nagar Industries Ltd. v. V. S. Gaitonde a direction to the concerned officer to rectify went out far beyond the prescribed time of four years. The point which is now raised for the revenue does not appear to have been argued in those two cases. In the present case, however, on the view we take, it seems to us to be unnecessary to go into this question and express a .....

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