1968 PLP 257 (PTD)

* * * * * * * (2) No order of assessment under section 23 or assessment or re-assessment under subsection (1) of this section shall be made after the expiry, in any case in which the assessee has not filed any return under subsection (1) or subsection (2) of sec tion 22 or concealed the particulars of his income or deliberately furnished incorrect particulars of such income or omitted or failed to disclose all material facts necessary for the assessment for that year, of four years from the end of the year in which the income, profits or gains were first assessable. * * * * * * * "35. (1) The Commissioner or Assistant Commissioner may, at any time within four years from the, date of any order passed by him in appeal or, in revision, as the case may be, and the income-tax Officer may; at any time within four years from the date of any assessment order or refund order passed by him, on his own motion rectify any mistake apparent from the record of the appeal, revision assessment or refund, as the case may be, and shall within the like period rectify and such mistake which has been brought to his notice by an assessee, or in the case of an order in appeal by any party to such appeal: Provided that no such rectification shall be made, having the effect of enhancing an assessment or reducing a refund unless the Commissioner, the Assistant Commissioner or the Income- tax officer, as the case may be, has given notice to the assessee of his intention so to do and has allowed him a reasonable opportunity of being heard. (2) The Provisions of subsection (1) apply also in like manner to the rectification of mistakes by the Appellate Tribunal. (3) Where any such rectification has the effect of reducing the assessment, the Income-tax Officer, shall make any refund which may be due to such assessee. (4) Where any such rectification has the effect of enhancing the assessment or reducing a refund, the Income-tax Officer shall serve on the assessee a notice of demand in the prescribed form specifying the sum payable, and such notice of demand shall be deemed to be issued under section 29, and the provisions of this Act shall apply accordingly. * * * * * * * * * * * * * * * * * * * * * On a perusal of the aforesaid provisions of law, it is evident that an order of assessment can only be made under section 23 of the Act and that an assessee who feels aggrieved by such an order may appeal to the Appellate Assistant Commissioner "under section 30 or to the Appellate Tribunal under section 33 as the case may be. This view finds support from the provisions of section 34 whereunder the Income-tax Officer is required to serve, a notice which will be treated as a notice under section 22(2) and the provisions of the Act (including of course section 23) so far as may be shall apply to the notice. Similarly, we think section 35(4) lends support to the view when it provides that the Income-tax Officer shall serve on the assessee a notice of demand specifying a sum payable and such notice of demand shall be deemed to be issued under section 29 and the provisions of this Act will apply. The assessment or the rectified assessment are considered as assessment under section 23 and for that reason it was not consider ed necessary to mention sections 34 and 35 in section

30. Section 35 merely enables the Income-tax Officer within four years from the date of the assessment to "rectify any mistake apparent from the record". Section 30 of the Act, as may have been noticed already, provides for an appeal to an assessee objecting to the amount of income assessed under section 23 or the amount of tax determined under section 23 or objecting to his assessment being made under subsection (4) of section

23. On a consideration of the different provisions of law, quoted above, we have come to the conclusion that the order of assess ment made under section 23 does not cease to be an order under that section merely because it has undergone a change by way of rectification due to some mistake apparent from the record of the assessment. The original order of assessment which is substituted by the rectified order made under section 35 of the Act continues to be an order under section 23 so as to attract to it the provisions of section 30 or 33 which provides for an appeal. We are support ed in our view by a decision of the Privy Council reported in Commissioner of Income-tax, Bombay Presidency and Aden v. Khemchand Ramdas (65 I A 236). In the case under report, certain firm had been registered under the Income-tax Act and was there fore not assessed to super-tax. This assessment was made under section 23, subsection (4), of the Income-tax Act which, as it stood then, provided that there was no appeal from an order made under this subsection. Notice of Demand duly followed the order of assessment. Subsequently, the Commissioner of Income-tax, in the purported exercise of his powers of review under section 33 of the Income-tax Act, issued a notice on the assesses to show cause why the order of the Income-tax Officer granting registration to it should not be set aside and by a subsequent order cancelled the registration of the assessee-firm and directed the Income-tax Officer to take necessary action thereupon. The matter having thus come back to the Income-tax Officer, he passed the following order on May 4, 1929: "The firm was originally assessed to income-tax on an income of Rs. 1,25,000 as a registered firm. The registration order was subsequently cancelled. The firm is accordingly assessed to super-tax on Rs. 1,25,000 less Rs. 50,

000. Issue N. D. accordingly for super-tax of Rs. 5,468 12-0." A Notice of Demand followed the order. As against this order of the Income-tax Officer passed in obedience to the order passed by the Commissioner of Income-tax, the assessee preferred an appeal before the Appellate Assistant Commissioner under section 30 of the Act. The Appellate Assistant Commissioner dismissed the appeal upon merits and did not deal with the question of competency of the appeal. Following upon the disposal of the appeal, the assessees applied to the Commissioner himself asking him to exercise his powers under section 33 of the Income-tax Act and set aside both the order of the Income-tax Officer levying super-tax and the order of the Assistant Commissioner that con firmed such tax. In the alternative, the Commissioner was asked to refer the matter to the High Court under the provisions of section 66(2) of the Act. The Commissioner rejected the prayers of the assessees and the assessees approached the Court of the Judicial Commissioner from the decision of the Commissioner and in due course certain questions were referred to the Court of the Judicial Commissioners (that is the High Court). Two of the questions were as follows :- (1) Was the appeal to the Assistant Commissioner from the order of May 4, 1929 (that is the order of the Income-tax Officer passed in obedience to the order of the Commissioner of Income -tax under section 33. of the Act) competent? (2) Had the Income-tax Officer any power to make that order in view of the provisions of sections 34 and 35 of the Act? After having discussed the relevant, provisions of the Income -tax Act in extense, their Lordships of the Privy Council answered the first question in the affirmative and the second question in the negative. In course of the judgment, their Lordships of the Privy Council have observed that an order of the nature pass ed by the Income-tax Officer on May 4, 1929 could only be passed under sections 34 or 35 of the Act, and that in spite of the proviso in section 23, subsection (4) of the Act, as it stood then, barring an appeal from an order passed under the subsection, the assessee had a right of appeal to the Assistant Commissioner under section

30. It may be mentioned that the present case stands on a stronger footing inasmuch as the order passed under section 23 of the Act has not been debarred from appeal. We may add that it is inconceivable that the Legislature, which has provided for an appeal from an order of assessment made under section 23, has intended that the moment an order of assessment is rectified under section 35, the assessee will lose his right of appeal. Such an unreasonable and unjust interpretation can only lead us to the conclusion that what the Legislature has given with one hand it has taken away with the other, thus making the provisions prescrib ing for appeal nugatory. Any Income-tax Officer wishing to make his order non-appealable may commit a mistake apparent from the record and thereby rob the assessee of his right of appeal. The position is wholly untenable. We are, therefore, clearly of the opinion that an assessee is entitled to appeal under section 30 or section 33 as the case may be from an order of assessment that has undergone a rectification under section

35. The order of rectification passed under section 35 of the Act merely has the effect of substituting the original order passed under section 23 of the Act by the corrected order passed in exercise of the power conferred by section 35 of the Act. That seems to be precisely the reason why after the rectification had been made in the original order of assessment the Appellate Assistant Commissioner found that he ceased to exercise jurisdiction over the appeal that had been filed from the original order of assessment by reason of the enhancement of the assessment to a figure exceeding Rupees two lakhs. The next question that falls for consideration is : whether, in view of the fact that an appeal lay from the rectified order of assessment which was followed by a Notice of Demand dated the 4th of April 1964, the present application is maintainable ? Sec tion 30, subsection (2), of the Act prescribes that the appeal shall ordinarily be presented within 30 days of the receipt of the Notice of Demand relating to the assessment. Although the appeal. Before the Appellate Assistant Commissioner from the original order of assessment was filed in time, there was no appeal filed from the rectified order of assessment, obviously, due to a misconception about the law on the part of the petitioner. In the absence of any decision of a High Court or of the Supreme Court of Pakistan on the point, and in the presence of certain decisions of the Indian Courts indicating there is no such appeal, it cannot be said that the misconception was unfounded. In these circumstances, the petitioner seemed to have no other alternative but to approach this Court in the exercise of its extraordinary jurisdiction to obtain the necessary relief. It is true that the petitioner may still appeal to the Income-tax Appellate Tribunal even though the prescribed sixty days elapsed long ago and the Tribunal can admit the appeal if it is satisfied that there is sufficient cause for not presenting it within the period vide section 33 (2-A) of the Act. But this is a doubtful remedy as it rests entirely within the discretion of the Tribunal to admit the appeal or not. Having regard to the peculiar facts of this case, we think we should entertain this application but limit our consideration to the terms of the rule; namely, as to whether the impugned proceed section 35 of the Income-tax Act and the act of making the assessment were legal or not. This takes us to the second contention advanced on behalf of the peti tioner, namely, the proceeding taken and assessment made under section 35 of the Act is not legal inasmuch as there did not exist any mistake apparent from the record to enable the Income-tax Officer to exercise his jurisdiction under this section. It is necessary to bear in mind certain relevant dates in this connection. The original order of assessment was made on the 12th of November 1963 and a notice under section 35 of the Act to show cause why the proposed correction should not be made was issued shortly thereafter on the 21st of February 1964. Objection to the proposed correction was made by they petitioner on the 9th of March 1964 and the order of rectification was passed by the Income-tax Officer on the 31st of March 1964. It is, therefore, evident that soon after making the original order of assessment the mistake was discovered and action was taken to rectify it. The question, however, is : whether on the facts of the case, has there been any mistake which can be characterised as `mistake apparent from the record. On behalf of the respondent, it has been argued that the mistakes is clearly apparent from the record, namely, Annexures `A' and B' to the affidavit-in-opposition which are the accounts in respect of petitioner's lines operating in Barisal and Chittagong respectively, submitted by the petitioner itself prior to the original assessment. These accounts will themselves show without the assistance of any argument or ascertainment of any additional fact that the Income-tax Officer committed a mistake in the original order of assessment. The records of the case have been placed before us and they have been examined by Mr. M. H. Khondkar, learned Advocate appearing on behalf on the petitioner, and we find that the statements made by the respondent on this point have been amply borne out. The petitioner has never denied that Annexures `A' and `B' were put in by it before the Income-tax Officer. The records show that these Annexures were submitted in obedience to orders made by the Income-tax Officer dated the 1st and 17th of October 1963. On these facts, we are satisfied that the mistake was apparent from the record and the Income-tax Officer was legally entitled to and justified in making the corrections under section 35 of the Act. As regards the scope of section 35 of the Act, we shall only refer to the following two cases : In the case of Commissioner of Income-tax, Bombay Presidency and Aden v. Khemchand Ramdus, mentioned earlier, Lord Romer, J., on the facts of the case, which we have stated elsewhere, has held that, once a final assessment has been arrived at, it cannot be re-opened by the Income-tax Officer of his own motion, or at the direction of the Commissioner exercising his powers under section 33 of the Income-tax Act, 1922, except in the circumstances and within the time prescribed by sections 34 and 35 of the Act. On a consideration of the facts of the case, Lord Romer, J., has held that the subse quent order passed by the Income-tax Officer imposing a super -tax can only be made under the provisions of either section 34 or section 35 of the Act. In the case of Sh. Muhammad Iftikharul-Haq v. The Income-tax Officer, Bhawalpur (P L D 1966 S C 524) the Supreme Court of Pakistan has quoted with approval the following observations of the Privy Council extracted from the aforesaid Privy Council case: "In their Lordships' opinion, the case clearly would have fallen within the provisions of section 35 had the Income-tax Officer exercised his powers under the section within one year from the date on which the earlier demand was served upon the respondents. For looking at the record of the assessments made upon them as it stood after the cancellation of the respondent's registration and the order affecting the cancellation would have formed part of that record-it would be apparent that a mistake had been made in stating that no super-tax was leviable." In the case under report, the Supreme Court of Pakistan up held the imposition of super-tax which was omitted in the original order of assessment and which was subsequently made in exercise of the powers of the Income-tax Officer under section 35 of the Act. For the reasons stated above, we discharge the Rule but having regard to the peculiar facts of this case we make no order as to costs. A. H. KHAN.-I agree with my learned brother that the Rule should be discharged. I should, however, like to state my decision on the points that fall to be decided in this case in my own way. The relevant facts of the case have been stated by my learned brother and I do not propose to repeat them. The first and what appears to me the most important question that falls to be decided is, whether the Income-tax Officer had jurisdiction to pass the impugned order, enhancing the assessment as done by him, purporting to act under section 35 of the Income-tax Act, 1922 (hereinafter referred to as the Act). If the order was within the jurisdiction of the Income-tax Officer, then no question of interference with the order under the extraordinary jurisdiction of the Court under Article 98 of the Constitution arises. Mr. M. H. Khondker, the learned Advocate for the petitioner, has contended that the alleged mistake in question cannot be construed as "a mistake apparent from the record" of the assessment case of the petitioner within the meaning of that expression in section 35 of the Act. Now, as to the construction of that expression it appears that there is a judicial opinion on this point. In the case of Shanti Lal Rawji v. M. C. Nair IV Income-tax Officer E-Ward Bombay and another ((1958) 34 I T R 439 at p. 441), cited by Mr. Khondker, Chagla, C. J. of the Bombay High Court observed as follows: "If all the facts are on the record and no Further elucidation or ascertainment is necessary and if on those facts it is clear that the Income-tax Officer has made an error of law (or fact) there is no reason why the error cannot be rectified under sec tion 35. " The same view was taken by Mahajan, J. in the Indian Supreme Court decision in the case of Maharana Mills Ltd. v. I. T. Officer Porbander (36 I T R 350 at p. 358), where it was observed as under: "The power under section 35 is no doubt limited to rectifica tion of mistakes which are apparent from the record. A mistake contemplated by this section is not one which is to be discovered as a result of argument but it is open to the Income-tax Officer to examine the record including the evidence and if he discovers any mistake be is entitled to rectify the error, provided that if the result is enhancement of assessment and reducing the refund notice has to be given to the assessee and he should be given a reasonable opportunity of being heard." This observation was relied upon in a subsequent decision of the Supreme Court of India Income-tax Officer Alwaye v. Asok Textiles Ltd. (41 I T R 732). The Supreme Court of Pakistan in the case of Sh. Md. Iftikharul Huq v. The Income-tax Officer Bahawalpur approved of the view of the High Court of West Pakistan, Lahore, that "if fresh facts have to be ascertained then Section 34 is the only one available but if no new factual basis is to be adopted for the correction, and correction is to be made on the basis of the facts previously accepted, as they appear from the record, section 35 is also available.". In that case through over sight the Income-tax Officer had overlooked to assess super-tax payable by the assessee and he subsequently assessed the super-tax purporting to act under section 35, after issuing the necessary notice. The demand in respect of the super-tax was challenged by the assessee by a writ petition before the High Court contending that the act of the Income-tax Officer was ultra vires of the power given under section

35. The contention was over ruled by the High Court ; and in upholding the view of the High Court his Lordship, Cornelius, C. J. observed as under "There had been an oversight in respect of imposition of super-tax for which no enquiry regarding income, profits, etc. is necessary beyond that which is requisite for imposition of Income-tax. That process had been gone through in the case of this firm and in order to assess super-tax, on the ascertained income a simple mathematical formula had to be applied which cannot fall within the term "ascertainment of facts." An over sight is clearly a mistake of inadvertence, and as such, a mistake within the meaning of section 35 aforesaid." His Lordship in the above decision also referred to the Privy Council case of Commissioner of Income-tax v. Khem Chand Ramdas, as an authority on the point. Third ruling of the Privy Council was not placed before us but we have looked into it for ourselves and we find that it is not only an authority on the above point but also an authority in support of the view urged by Mr. Afzalul Huq, the learned Advocate appearing for the respondent, that an appeal lies against an order under section 35 which will be discussed hereafter. From the above, it is perfectly clear that section 35 will apply when a mistake is apparent from the record and no new facts have to be ascertained by further enquiry, and the matters on the record are sufficient for the pur pose of rectification of the mistake. In the instant case, it is cleat from the affidavit-in-opposition sworn by the Respondent Income-tax Officer and the record of the case which was placed before us and also scrutinised by Mr. M. H. Khondker, that on being requir ed by the respondent to do so, the Company submitted the two statements, Annexures `A' and `B' to the affidavit-in-opposition through its Representatives and Accountant. Both the statements bear the signature of the Accountant M. H. Choudhury with the dates of submission of the same. It appears that the statement regarding the Chittagong Lines, Annexure `B' was produced on 17-10-63 and that in respect Barisal Lines, Annexure `A', was submitted on 30-10-60. Each statement showed separately, the total number of trips of the different Launches on the different lines and total amounts of fares, if the Launches had plied carry ing passengers to full capacity under their permits on such trip through, the year under assessment. Annexure `B' showed the total fares as Rs. 8,22,285-12-0 and Annexure `A' as Rs. 11,05,

779. Mr. Khondker, the learned Advocate for the petitioner, did not deny that both the statements, Annexures `Ay and `B' had been submitted by the petitioner company's representative and accountant but contented himself by simply submitting that in the order dated 30-10-63 in the record of the case it is not noted by the Income-tax Officer that the statement Annexure `A' was sub mitted. There can, however, be no disputing the fact that this annexure was actually filed by the petitioner Company's represen tative on 30-10-63, and it formed part of the record of the case. It further appears that the Income-tax Officer in assessing the income of the petitioner Company took into calculation only the amount of fares of 11 lacs and odd in Annexure `A' submitted on 30-1-0-63, and through inadvertance he overlooked the amount of 8 lacs and odd under Annexure `B' the amount of total fares for the Chittagong lines, and on such calculation, assessed the profits of the company at Rs. 1,32,000 and odd, refusing to compute the income and profits and loss on the basis of the return submitted by the Company for the year, supported by audited balance sheet and profit and loss account (vide Annexures `A' and `B' to the petition). This assessment order was passed on 12-11-63 (Annexure `C' to the petition). It should be mentioned here that under the Company's income-tax return ; Annexure `A', a loss of 7,000 and odd was shown. Thereafter on 21-2-64 the Income-tax Officer issued, a notice under section 35 of the Act (Annexure `D') in which the above omission in the assessment was clearly mentioned ; and after considering the objection filed by the . Company, he passed the impugned order of rectification dated 31-3-64 (Annexure B') on the basis of total of the amounts in the statements submitted by the Company on the 17-10-63 and 30-10-63. And a further demand notice under section 29 was issued. An appeal had already been preferred before the Appellate Assistant Commissioner, against the original order of assessment, the amount of Income-tax assess ed originally having been bellow rupees two lacs ; but after the rectification under section 35, as the income assessed exceeded his pecuniary jurisdiction at the Appellate Assistant Commissioner "struck off" the appeal on that ground. An appeal against that order is now admittedly pending before the Appellate Tribunal. To return to the question of jurisdiction of the Income-tax Officer to pass the impugned order under section

35. From the foregoing discussions, it is quite clear that the said order was passed by the Income-tax Officer on the basis of the materials already on the record of the case and, therefore, it can be safely held that it was an order rectifying a mistake apparent from the record. It follows, therefore, that it was an order made in valid exercise of the jurisdiction conferred on him under section 35, subsection (1) within the period of limitation of four years from the date of the original assessment orders, the impugned order having been passed on 31-3-64 and the original assessment order on 12-11-63. In the result, I respectfully agree with my learned brother in his finding that the impugned order was within the purview of section 35, and the Rule Nisi issued in this case must, therefore, be discharged. As to the question whether an appeal lies against an order under section 35, I respectfully agree with my learned brother that an appeal lies under section 30 or 33, as the case may be, from such an order. Mr. Khondker, the learned Advocate for the petitioner has cited a number of rulings of the Indian Courts in support of his contention that no appeal lies. He has referred, inter alia, to the following observations of Chagla, C. J. in the case of Shanti Lal Rawjd (34 I T R 439): "Rectification proceedings are not intended for making an order which made by the Income-tax Officer in the original assessment could have been challenged in appeal. The Legislature did not intend that the rectification order should act to the prejudice of the assessee in this sense that he should be deprived of a right of appeal by resorting to rectification procee dings because a particular order was not made in the original assessment." In the above observation and the other rulings relied on by Mr. Khondker no cogent reason appears to have been advanced for the proposition that no appeal lies against an order under section

35. Now, there is no dispute that an appeal will lie against an order of re-assessment (or assessment) under section 34 of the Act, though this section is not mentioned in section 30 which is the provision for an appeal. It is true that in section 34 it is stated that the Income-tax Officer is to issue a notice under that section which shall be deemed to be one under section 22(2) of the Act but there is no such provision in section

35. But there is a provision there also for issue of a notice if enhancement of assessment is proposed under that section, and also the provision for issue of a demand notice specifying the sum payable and that "such notice of demand shall be deemed to be issued under sec tion 29, and the provision of this Act shall apply accordingly." The simple reason for the difference in the wording regarding notice etc. under the two sections is that in a case under section 35 no further evidence or enquiry would be necessary and so under that section there can be no question of issuing any notice of the nature of a notice under section 22(2) as in the case of section

34. On a careful scrutiny of sections 30, 34 and 35 and other provisions of the Act, we are unable to find anything in them from which it can be construed that an appeal from an order under section 35 does not fall within the purview of section

30. It is true that in section 30, an order under section 35 is not specifically mentioned. But then, nor is section 34 mentioned therein. In the case of section 34 the words "assess or re-assess" and also the expre3sion and "provision of this Act shall so far as may be, apply accordingly as if the notice were a notice under that sub section" (i.e., subsection (2) of section 22), clearly indicate that the amount of income assessed or re-assessed under section 34 also falls within the meaning of the expression, "the amount of income assessed under section 23" in section 30 of the Act. Obviously, such words or expressions in section 34 as noted above were not required to be used in section 35, in view of the different circum stances envisaged under that section. That sections 34 and 35 stand on the same footing, so far as the question of appeal under section 30 is concerned, is clear from the decision of the Judicial Committee of the Privy Council in the case 'of Commissioner of Income-tax, Bombay v. Khem Chand Ramdas. In that case the respondent firm was assessed by the Income-tax Officer as a registered firm, and was exempted from super-tax, an exemption which is not available to an unregistered firm and assessment in that case was made under section 23(4) of the Act. It was in respect of the fiscal year ending on March 31, 1926. It appears that before the amendment of 1939, there was a provision that no appeal would lie against any assessment under subsection (4) of section

23. It appears that subsequent to the above assessment under section 23(4), registration of Respondent firm was cancelled by the Commissioner under purported exercise of his revisionary powers under section 33 (as it stood then) of the Act and he directed the Income-tax Officer "to take necessary action there upon." 1n pursuance of this order, the Income-tax Officer on May 4, 1929, passed the following order :- "The firm was originally assessed to income-tax on an income of Rs. 25,000 as a registered firm. The registration order was subsequently cancelled. The firm is accordingly assessed to super-tax on Rs. 1,25,000 issue N. D. accordingly for super-tax of Rs. 5,408-12-0." The demand notice was served on the respondent three days later. This was more than one year after the original order of assessment. The respondent firm thereupon preferred an appeal against this order and the Appellate Assistant Commissioner dismissed the appeal on merits, holding that the order of May 4, 1929 passed by the Income-tax Officer under section 35 was a valid order and he confirmed the tax. The respondent firm thereupon filed an application to the Commissioner for setting aside the order of the Appellate Assistant Commissioner and, alternatively, also applied for making a reference to the High Court under section 66(1). The Commissioner rejected both petitions as he regarded the case as a clear one of assessment under section 23(4) in respect of which no appeal lay at that time and the appellate proceeding, and the order of the Appellate Assistant Commissioner were there fore, in his opinion, illegal and he quashed them as illegal. The respondent, however, succeeded in having the case stated and referred to the High Court for decision by resorting to the provisions of section 66(2) of the Act. Three questions were referred and the first two which are relevant for the present case were as follows: (1) Whether, in spite of the fact that the assessment in this case levied tinder section 23 subsection 4, of the Act, and inspite of the provisions of the proviso to S. 30, subsection (1) of the Act, the assessee had any right to present an appeal under S. 30 of the Act. (2) Whether in the above circumstances it was competent on the part of the Assistant Commissioner to hear such an appeal, and whether the appellate decision given could be said to be a legal appellate decision under S. 31 of the Act. The High Court answered all the questions in the affirmative. Thereupon the Commissioner preferred an appeal to the Privy Council on obtaining the necessary certificate from the High Court that it was a fit case for appeal to his Majesty in Council. The question that in the opinion of their Lordships of the Judicial Committee, fell to be decided were (1) was the appeal to the Assistant Commissioner from the order of May 4, 1929 (under section 35) competent, (2) Had the Income-tax Officer any power to make that order in view of the provisions of sections 34 and 35 of the Act. Sections 34 and 35 as they stood at that time provided that the action under these sections could be taken within one year from the time mentioned in each section. By amendment, the period of limitations has now been much enlarged. But intrinsically there has been no change, so as to alter the legal position regard ing the matter of appeal. Their lordships of the Judicial Committee quoting the provisions of the two sections observed as under: "In their Lordships' opinion, the provisions of the two sections are exhaustive, and prescribe the only circumstances in which and the only time in which, such fresh assessments can be made and fresh notice of demand can be issued. In the present case it is a debatable question whether the circumstances were such as to bring it within the provisions of S.34. It is not necessary to determine that question inasmuch as, in their Lordships' opinion, the case clearly would have fallen within the provisions of S. 35 had the Income-tax Officer exercised his powers under the section within one year from the date on which the earlier demand was served upon the respondents. For, looking at the record of the assessments made upon them as it stood after the cancellation of the respondents registration and the order effecting the cancellation would have formed part of that record it would be apparent that a mistake had been made in stating that no super-tax was leviable. The Income-tax Officer took no further step, however, until May 4, 1929, and by then he was hopelessly out of time, which ever of the two sections was applicable. Their Lordships are accordingly of opinion that the order of May 4,1929, was one that the income-tax Officer had no power to make, and that the second of the two questions one to which they referred must be answered in the negative. It necessary follows that the first of those questions should be answered in the affirmative. For the order could only be justified, if at all, as one made, not under S. 23, subsection (4), but under either S. 34 or S. 35." It is clear from the above decision of the Privy Council that so far as the question of appeal is concerned, sections 34 and 35 stand on the same footing and an appeal is available to a party aggrieved by an order under each section if preferred within time. The question whether an appeal lies against an order under section 35, however, appears to be of no great importance in this case, as we have found on merit, that the Income-tax Officer had jurisdiction to pass the impugned order and accordingly the present Rule must be discharged. For while exercising the extra ordinary jurisdiction under Article 98 of the Constitution we have no authority to decide on the merits of the original order of assessment of the Income-tax Officer, rejecting the evidence regarding income and profits and loss and computing the income in the manner the Respondent did, taking the full fares of all the trips throughout the year under assessment as the basis, and deducting 25 percent. of the same. This and such other matters are properly grounds to be taken before authorities under the Income-tax Act, exercising appellate or revisional powers. It appears that in the present case the petitioner company had preferred an appeal to the Appellate Assistant Commissioner but he "struck off" the appeal as in the meantime the assessment had been enhanced to an amount beyond his pecuniary jurisdiction. The petitioner did not prefer any appeal against the enhancement under section 35 as an appeal against the original assessment was already pending and moreover, the petitioner was not sure that an appeal lay against an order under section

35. In the result, I respectfully agree with my learned brother that the Rule should be discharged and it is discharged accord ingly. We make no order as to costs. A. H. Khan. Just after we passed orders in this case, it has been brought to our notice by Mr. M. H. Khondker, learned Advocate appear ing on behalf of the petitioner, that the Income-tax Appellate Tribunal has already allowed the appeal after having set aside the order of the Appellate Assistant Commissioner striking off the appeal and that the Tribunal has directed the Appellate Assistant Commissioner to dispose of the said appeal afresh. S. Q. Rule discharged.