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TMI Blog2001 (7) TMI 106X X X X Extracts X X X X X X X X Extracts X X X X ..... ,18,878. On the same date itself it come to the notice of the Assessing Officer that there was a mistake and accordingly it was corrected as Rs. 1,93,068 and it was found that the share of this partner was 25 per cent. in the firm and the profit was Rs. 1,18,875 and accordingly that assessment order was passed vide annexure II. It is the legality and validity of this order which is challenged in this writ petition. Heard Dr. A. K. Saraf, learned counsel for the petitioner, and Mr. U. Bhuyan, learned counsel for respondents. An affidavit in opposition has been filed on behalf of the respondents where in para. 4 it has been stated as follows : "4. That with regard to the statements made in paragraph 4 of the writ petition, it is stated t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filing an appeal before the Commissioner of Income-tax (Appeals), Guwahati. It has also been stated that an appeal has also been filed against the firm's assessment order under section 143(3) (annexure "III" to the writ petition) and as such the writ petition filed by the petitioner is not maintainable." After a lapse of almost six years, I am not inclined to throw out this application on the ground of availability of alternative remedy, but I want to dispose of the matter on the merits. Dr. A. K. Saraf, learned counsel for the petitioner, relying on section 155 of the Income-tax Act, urged that in this case notice is mandatory. This submission of learned counsel has no force in view of the fact that section 155 envisages a different ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee a reasonable opportunity of being heard." On the basis of this section 154(3), learned counsel makes the submission that without issuing a notice and without a reasonable opportunity of being heard, no correction can be made and in support of this contention he places reliance on the fallowing decisions : ITO v. Mohanlal [1975] 100 ITR 118 (AP). That was a case from the Andhra Pradesh High Court. There the notices which were issued for rectification of the mistakes under section 35 of the Indian Income-tax Act, 1922, were challenged on the ground that the notices became barred by time and thus the notices issued by the respondent are without jurisdiction and illegal. The learned counsel relies on the following portion : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed proceeding under section 35 of the Act for rectifying the assessment and no notice was sent to either brother by the Income-tax Officer and ordered to pay penal interest. It was in that background the apex court in page 41 pointed out as follows "A similar view was also expressed by this court in Sinha Govindji v. Deputy Chief Controller of Imports and Exports [1962] 1 SCR 540. It is more so in this case where the proviso to section 35 itself makes it incumbent upon the Income-tax Officer to give notice and a hearing to an assessee when the effect of the rectification would be the enhancement of the assessments The learned counsel for the deportment raised the forlorn argument that the addition of penal interest is not enhancement of a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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