9911796707
TMI Blog1959 (2) TMI 31X X X X Extracts X X X X X X X X Extracts X X X X ..... ayer for the issue of a writ of mandamus directing the Income-tax Officer, Mirzapur, to withdraw his notice of demand dated 13th December, 1954, issued to the petitioner in pursuance of his order of the same date under section 35 of the Income-tax Act. The assessee was assessed to income-tax in respect of his income for the assessment year 1953-54 by the income-tax Officer by his order dated 22nd September, 1953. In this assessment was included income from dividends received by the petitioner in respect of shares held by him in some companies including Messrs. Obeetee Limited. In the assessment year the Income-tax Officer; found that a net income of ₹ 17,056 had been received by the assessee as dividends. In respect of these dividend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 31st December, 1949, from the profits of earlier years and, while computing the total income of the assessee, this dividend was wrongly grossed up and credit of tax deducted at source amounting to ₹ 5,629-15-0 was wrongly allowed to the assessee. He then proceeded further to hold that the mistake was committed on account of wrong calculation, so that the was entitled to make the correction. Thereafter the assessee went up in revision before the Commissioner of Income-tax who, by his order dated 18th September, 1955, dismissed the revision upholding the order of the Income-tax Officer. These two orders were challenged by the petitioner on two main grounds : The first ground urged was that there was no mistake apparent from the rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the order passed under that provision of law, the Income-tax Officer has given his finding as to what the mistake was which he had found in that assessment order. The Income- tax Officer has held that the mistake was one committed on account of wrong calculations and it was on this view that he proceeded to exercise powers under section 35 of the Act. If there had been, in fact, a mistake of calculation only, which was apparent from the records of the proceedings, the Income-tax Officer would, no doubt, have been justified in exercising his jurisdiction to rectify the mistake. The question, however, is whether it can be held that the rectification that the proceeded to make was a rectification of a mistake committed on account of wrong ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts that warrants had been filed showed that he was aware of the provisions of section 20 of the Act under which certificates issued on behalf of a company have to be filed by an assessee. It is these certificates which have been described as warrants in this order. Then the order proceeds to mention the amount of the grossed up income. Grossing up of income from dividends is made and can be made only under the second part of section 16(2) of the Income-tax Act. The order on the face of it shows that he actually applied the provisions of section 16(2) of the Act to the case of the assessee when assessing his income. Having applied the provisions of section 16(2) of the Act, he, naturally, further proceeded to grant to the assessee the relief ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Such a mistake had really never occurred and was non-existent. The Income-tax Officer thus exercised his powers after noting his satisfaction that there was a mistake apparent from the record when that mistake did not at all exist; whereas another mistake, which, it has been urged on behalf of the Department, did exist, was never found by the Income-tax Officer to be a mistake which was apparent to him from the record. In these circumstances, it is not permissible for us now to go into the question whether the view of the Income-tax Officer that the provisions of sections 16(2) and 18(5) of the Income-tax Act were applicable to the case of the assessee, as inferred from the assessment order of the 22nd of September, 1953, was a correct or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 35 of the Income-tax Act does not arise because, once that order of rectification under section 35 of the Act is quashed, the notice of demand automatically become ineffective.
For these reasons, we allow this petition and quash the order of the Income-tax Officer dated 13th December, 1954, passed under section 35 of the Income-tax Act and the order of the Commissioner of Income-tax dated 18th September, 1955, passed in revision confirming that order of the Income-tax Officer. The petitioner will be entitled to costs of this petition form the Department which we fix at ₹ 400. For purposes of taxation, the fee of learned counsel for the Department will be taken at the same amount.
Petition allowed. X X X X Extracts X X X X X X X X Extracts X X X X
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