These writ appeals arise out of W. Ps. Nos. 191, 205, 207 and 204 of 1963 and they relate to income-tax assessments of the petitioner for the years 1952-53 to 1955-56. In respect of the assessment for the year 1952-53, the petitioner asked for a writ of certiorari. In respect of the other years, he sought a writ of prohibition to forbid the Income-tax Officer at Visakhapatnam from continuing the proceedings he had initiated. As the parties to these appeals are the same and a common question of law is involved in all these appeals, they can be disposed of by a common judgment.
The relevant facts are : The petitioner is a partner of two different firms, (1) Vuppala Peda Venkataramaniah & Sons Oil Mill, Anakapalli, and (2) Vuppala Peda Venkataramaniah & Sons, commission kottu. Each of the two minor sons of the petitioner has been admitted to the benefits of one of these two partnerships. Nookaiah Setty, one of the minor sons of the petitioner, is a partner in the oil mill. The other minor son, Ramanaji Rao, is a partner in the commission kottu. There are also other major partners in each of these firms. The firms have been duly registered under the provision of the Income-tax Act.
The individual assessment of the petitioner for the year 1951-52 was completed on October 31, 1951; for the year 1952-53, on April 21, 1954; for the year 1953-54, on January 23, 1954; for the year 1954-55, on February 10, 1956; and for the year 1955-56, on March 20, 1957. On the assessment of the oil mill in each of these five years, the share income of the petitioner was rectified on March 31, 1955, April 30, 1957, March 2, 1959, March 2, 1959, and April 18, 1960, respectively. Against each of the assessment orders, the oil mill preferred an appeal. On appeal, the Tribunal reduced the assessment made on the firm for the first four years, viz., 1951-52 to 1954-55. Regarding the year 1955-56, the Appellate Assistant Commissioners order has become final. It may at this stage be stated that the minor sons of the petitioner filed separate returns and they were separately assessed.
In February, 1963, the Income-tax Officer, Visakhapatnam, issued notices to the petitioner stating that his individual assessments had to be altered because the share income of his minor sons had not been included in computing his total income in any of the five years. The petitioner protested on the ground that it was not open to the Income-tax Officer in law to revise or alter the individual assessment orders which had already become final and the tax according to which had also been paid. In spite of the protest, the Income-tax Officer proceeded to make an additional assessment in respect of the year 1952-53, and issued a demand on the petitioner for payment of Rs. 11,786.84. It is stated that in respect of the other four years, the proceedings are still pending. It is the issue of this demand notice and the starting of these proceedings that gave rise to the writ petitions.
The petitioner in his affidavit stated that the notice issued was contrary to law, illegal and without jurisdiction; that as a result of the Tribunals decision, his share in the income of the firm had been correctly included an as such there was no mistake to be rectified; that the proposed rectification of the assessment was barred by time and as such the Income-tax Officer had no jurisdiction to issue the notice; that the proposed assessment amounts to reassessment and it could not be done; that section 35 of the Income-tax Act, 1922, is not in force after April 1, 1962; and that the assessments in question having been finalised before March 31, 1962, section 154 of the Income-tax Act of 1961 is not applicable by reason of the saving provisions of section 297 of the new Act.
The Income-tax Officer in his counter, after denying the material allegations in the affidavit filed in support of the writ petitions, stated that in the original assessments the correct share incomes were not taken but only provisional amounts were taken with the specific understanding that they were subject to revision under section 35 of the Income-tax Act, 1922 (corresponding to sections 154 and 155 of the Income-tax Act, 1961), after the ascertainment of the correct share income which could be finally known after the completion of the assessments of the firm. The income of the minor sons of the petitioner was also liable to be included as per the provisions of section 16(3) (a) (ii) of the 1922 Act, and so, notices were issued under sections 154 and 155 for the aforesaid assessment years and the assessee was given a reasonable opportunity of being heard. After consideration of the objections raised by the assessee, the orders were passed. It was also stated that since the rectification under sections 154 and 155 of the Income-tax Act, 1961, for the assessment years 1951-52 and 1955-56 had not yet been completed, there was no question of any limitation. It was further stated that under section 16 (3) (a) (ii) the income of the minor had to be included and since it had been overlooked, that mistake was being rectified as it amounted to an error apparent from the record; and hence, there was no question of the notices being contrary to law or invalid.
On these averments, two questions were raised before our learned brother :
'(1) Whether the old Income-tax Act of 1922 or the new Income-tax Act of 1961 was applicable to the proceedings now impugned ?
(2) Whether the Income-tax Officer has power and jurisdiction under the provisions of the relevant Act to take the proceedings now challenged ?'
On the first question, our learned brother held that the old Income-tax act of 1922 was applicable to the proceedings now impugned. On the second point, our learned brother held that the Income-tax Officer had no power and jurisdiction under the provisions of the relevant Act to take the proceedings. In the result, our learned brother allowed all the five writ petitions and quashed the proceedings of the Income-tax Officer. Hence, these separate appeals on behalf of the department.
Sri Kondaiah, the learned counsel for the department, has advanced the same two arguments. His first contention is that the Income-tax Act of 1922 is not applicable to the case but the Income-tax Act of 1961 is applicable. The second contention is that the Income-tax Officer had full power and jurisdiction under the provisions of the Act to take proceedings and issue notices.
Two questions, therefore, arise for our consideration :
'(1) Whether it is the old Income-tax Act of 1922 or the new Income-tax Act of 1961 that applies to the proceedings now challenged ?
(2) Whether the Income-tax Officer had power to take proceedings under the provisions of the Act ?'
The contention of Sri Kondaiah, the learned counsel for the department, is that the new Act would apply to the present proceedings, and in this connection he drew our attention to section 297(2) of the Act. On the other hand, the contention of Sri K. Ramchandra Rao, the learned counsel for the respondent, is that since the new Act came into force on April 1, 1962, and it is the admitted case of the department that the assessments were made and completed prior to 1962, there is no question of the applicability of the new Act as it cannot have retrospective effect except to the extent provided in the Act itself and that the old Act, though repealed, should be deemed to continue to apply to the case.
Before attempting to answer the question raised, it will be convenient at this stage to notice briefly the well-settled rules of statutory construction in regard to the retrospective operation of amending Acts.
Craies on Statute Law (5th edition) says about retrospective enactments at page 357 as follows :
'A statute is to be deemed to be retrospective, which takes away or impairs any vested right acquired under existing laws, or creates a new obligation, or imposes a new duty or attaches a new disability in respect to transactions or considerations already past... In Lauri v. Renad, Lindley L. J. said : It is a fundamental rule of English law that no statute shall be construed so as to have a retrospective operation, unless its language is such as plainly to require such a construction. And the same rule involves another and subordinate rule, to the effect that a statute is not to be construed so as to have a greater retrospective operation than its language renders necessary.'
At page 360, the learned author states the rule of construction as follows :
'And perhaps no rule of construction is more firmly established than this - that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation otherwise than as regards matter of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only.'
Maxwell on the Interpretation of Statutes (tenth edition) says much to the same effect at page 213 thus :
'It is a fundamental rule of English law that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act, or arises by necessary and distinct implication.'
At page 214, the earned author proceeds to state :
'A statute is not to be construed to have a greater retrospective operation than its language renders necessary.'
In Halsburys Laws of England, volume 27, page 159, it is stated :
'A statute is prima facie prospective, and does not interfere with existing rights, unless it contains clear words to that effect, or unless having regard to its object, it necessarily does so.'
Further,
'A statute is not to be construed to have a greater retrospective operation than its language renders necessary.'
Bowen L. J. in Reid v. Reid states the scope of the rules of construction in clear terms at page 408 as follows :
'Now the particular rule of construction which has been referred to, but which is valuable only when the words of an act of Parliament are not plain is embodies in the well-known trite maxim omnis nova constitution features formal imponere debet non praeteritis, that is, that except in special cases the new law ought to be construed so as to interfere as little as possible with vested rights. It seems to me that even in construing an Act which is to a certain extent retrospective, and in construing a section which is to a certain extent retrospective, we ought nevertheless to bear in mind that maxim as applicable whenever we reach the line at which the words of the section cease to be plain. That is a necessary and logical corollary of the general proposition that you ought not to give a larger retrospective power to a section, even in an Act which is to some extent intended to be retrospective, than you can plainly see the Legislature meant.'
It is, therefore, clear from the statement of law made by recognised authorities that a statute affecting vested rights is prima facie prospective unless the statute expressly or by necessary implication indicates to the contrary. Even when it is retrospective in operation, courts should confine its operation only to the extent the language renders it necessary. Further, if an Act is to a certain extent retrospective, when we reach the line at which the words of the sections cease to be plain, the same rule of construction leaning against retrospectivity should be applied.
Bearing the aforesaid principles in mind, let us now refer to the relevant provision of the Income-tax Act of 1961.
Section 297(1), which refers to the old Act being repealed, enjoins :
'The Indian Income-tax Act, 1922 (XI of 1922), is hereby repealed.'
Clause (2) reads :
'Notwithstanding the repeal of the Indian Income-tax Act, 1922 (XI of 1922) (hereinafter referred to as the repealed Act), -
(a) where a return of income has been filed before the commencement of this Act by any person for any assessment year, proceedings for the assessment of that person for that year may be taken and continued as if this Act had not been passed;
(b) where a return of income is filed after the commencement of this Act otherwise than in pursuance of a notice under section 34 of the repealed Act by any person for the assessment year ending on the 31st day of March, 1962, or any earlier year, the assessment of that person for that year shall be made in accordance with the procedure specified this Act;
(c) any proceeding pending on the commencement of this Act before any income-tax authority, the Appellate Tribunal or any court, by way of appeal, reference or revision, shall be continued and disposed of as if this Act had not been passed.'
It is clear, therefore, that though by this Act of 1961, the old Income-tax Act of 1922 has been repealed, certain rights are saved, namely, where a return of income has been filed before the commencement of this Act by any person for any assessment year, proceedings for the assessment of that person for that year have to be taken and continued as if the new Act had not been passed; or where any proceeding is pending at the time of the commencement of the new Act before any income-tax authority, the Appellate Tribunal or any court, by way of appeal, reference or revision, it has to be continued and disposed of as if the new Act has not been passed. None of the saving provisions contained in section 297 relates to proceedings similar to those taken by the Income-tax Officer in the instant cases. There is nothing in section 297(2) to show that the new Act applies to cases like the present. From the very wording of section 297, it is clear that it does not destroy the rights already created or acquired under the Act of 1922. Thus, the operation of the General Clauses Act would not be excluded. It is well settled that, in the absence of express words or necessary implication to the contrary, a statute can have only prospective and not retrospective operation. There is nothing in the new Act which either expressly or by necessary intendment gives it retrospective effect in respect of the proceedings now in question.
It would be appropriate at this stage to refer to section 6 of the General Clauses Act. Clause (c) of it says that when an Act is repealed, in the absence of a different intention appearing from the repealing Act, all rights and privileges which were acquired or which accrued under the repealed Act would remain unaffected. Clause (e) preserves intact the remedies in respect of such rights and privileges. It follows, therefore, that if the new Act does not express or necessarily imply any different intention within the meaning of section 6 of the General Clauses Act, the provisions of the old Act must govern. The proper approach is not to ascertain whether the new Act has expressly saved the rights and liabilities acquired or incurred under the old Act but to see whether the new Act embodies a different intention and does expressly or by necessary implication destroy the rights and liabilities acquired or incurred under the old Act. Viewed in this manner, we do not find anything in the new Act which destroys the rights and privileges acquired under the old act or the liabilities incurred thereunder.
Let us consider this in another manner. In section 297(2)(a), the expression 'proceedings for the assessment' occurs. If the proceedings launched by the Income-tax Officer in the instant cases are construed as proceedings for assessment, they would in express terms be saved by section 297(2)(a) of the new Act. The term 'assessment' includes in our opinion not only the computation of income but also the determination of the sum payable as tax. What the Income-tax Officer is doing now, in essence, amounts to this he is trying to compute the petitioners income at a higher amount and to fix his tax liability in a larger sum. In seeking to include the income of his minor sons in the total income of the petitioner, proceedings are in effect taken under the provisions of section 16 (3) (a) (ii) of the old Act. From the opening words in section 16 (3), 'in computing the total income of any individual for the purpose of assessment, there shall be included - ...' it is clear that a process of computation of income is involved in the proceedings taken by the Income-tax Officer, and on the income of the petitioner so computed, the amount of tax payable by him has to be determined. As a matter of fact, the Income-tax Officer did determine this amount in respect of the assessment year 1952-53 and by the present action he intends to do so in respect of the other four years. Judging by the object which actuated the proceedings, it becomes clear that the proceedings initiated are in truth and effect proceedings for assessment. We would, therefore, be justified in coming to the conclusion that the present cases are covered by the saving provision of section 297(2)(a) of the Act of 1961.
The learned counsel for the department has drawn our attention to section 155 of the new Act, which runs thus :
'(1) Where in respect of any completed assessment of a partner in a firm it is found, -
(a) on the assessment or reassessment of the firm, or
(b) on any reduction or enhancement made in the income of the firm under this section, section 154, section 250, section 254, section 260, section 262, section 263 or section 264, that the share of the partner in the income of the firm has not been included in the assessment of the partner or, if included, is not correct, the Income-tax Officer may amend the order of assessment of the partner with a view to the inclusion of the share in the assessment or the correction thereof, as the case may be; and the provisions of section 154 shall, so far as may be, apply thereto, the period of four years specified in sub-section (7) of that section being reckoned from the date of the final order passed in the case of the firm.
(2) Where in respect of any completed assessment of a member of an association of persons or of a body of individuals, it is found -
(a) on the assessment or reassessment of the association or body, or
(b) on any reduction or enhancement made in the income of the association or body under this section, section 154, section 250, section 254, section 260, section 262, section 263, or section 264, that the share of the member in the income of the association or body, as the case may be, has not been included in the assessment of the member or, if included, is not correct, the Income-tax Officer may amend the order of assessment of the member with a view to the inclusion of the share in the assessment or the correction thereof, as the case may be; and the provisions of section 154 shall, so far as may be, apply thereto, the period of four years specified in sub-section (7) of that section being reckoned from the date of the final order passed in the case of the association or body, as the case may be.....'
A plain reading of the above provisions would show that it has only prospective operation. Proceedings for rectification of the individual assessment of a partner on the basis of the assessment or the reassessment of the firm affect vested rights and are not merely matters of procedure. The proceedings for rectification of the completed assessment of the petitioner are said to have been taken because of certain appellate orders passed by the Income-tax Appellate Tribunal and the Income-tax Appellate Assistant Commissioner. These appellate orders were passed before the coming into force of the new Act of 1961. Admittedly, what the Income-tax Officer sought to do in the present cases was by virtue of those appellate orders. It is, therefore, only reasonable to conclude that the statutory provisions which were in force at the time the appellate orders were passed must govern the proceedings now in question. We are, therefore, clear that the present cases have to be decided on the basis of the old Act of 1922, and not under the new Act of 1961.
We will now turn to the next question, namely, whether the Income-tax Officer has power to take proceedings under the provisions of the Act. The contention of Sri Kondaiah, the learned counsel for the department, is that the department has power to take proceedings under section 35(1), read along with sub-section (5) of that section. In order to appreciate the contention, we have to refer to these provisions :
Section 35 (1) runs thus :
'The Commissioner or Appellate Assistant Commissioner may, at any time within four years from the date of any order passed by him in appeal or, in the case of the Commissioner, in revision under section 33A, 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 any such mistake which has been brought to his notice by an assessee.'
Sub-section (5) reads thus :
'Where in respect of any completed assessment of a partner in a firm, it is found on the assessment or reassessment of the firm or on any reduction or enhancement made in the income of the firm under section 31, section 33, section 33A, section 33B, section 66 or section 66A that the share of the partner in the profit or loss of the firm has not been included in the assessment of the partner or, if included, is not correct, the inclusion of the share in the assessment or the correction thereof, as the case may be, shall be deemed to be a rectification of a mistake apparent from the record within the meaning of this section, and the provisions of sub-section (1) shall apply thereto accordingly, the period of four years referred to in that sub-section being computed from the date of the final order passed in the case of the firm.'
The scope of sub-sections (1) and (5) appears to be distinct and different. In our opinion, sub-section (1) would be attracted when there is a mistake apparent from the record of an individual assessment. If the mistake becomes apparent, not from the record of an individual assessment but from the record of the assessment of a firm, which, for the purposes of the Income-tax Act, is another entity, no action can be taken under section 35 (1). Further, the rectification under section 35 (1) of the mistake apparent from the record can only be done within four years of the assessment order and, after the expiry of the period of four years, such a mistake cannot be corrected under section 35 (1). In other words, the power of rectification may be exercised subject to two conditions : (1) that there is a mistake apparent from the record of the assessment; and (2) that the order of rectification is made within four years from the date of the assessment order sought to be rectified. The mistake which may be rectified need not be in the order itself. It may be in any part of the record or proceedings of assessment of the assessee.
Sri K. Ramachandra Rao, the learned counsel for the respondent, has contended that the rectification now sought cannot be deemed to be a mistake apparent from the record and cannot be rectified under section 35 (1). In support of his argument, he relied on the following cases : Calcutta Discount Co. Ltd. v. Income-tax Officer, Kalawati Devi Harlalka v. Commissioner of Income-tax, Lakshminarayana Chetty v. Additional Income-tax Officer, and Income-tax Officer v. S. K. Habibullah. On behalf of the department, reliance is placed on Meka Venkatappaiah v. Additional Income-tax Officer and Venkatachalam v. Bombay Dyeing and . We need not to into this question because even if there was a mistake apparent from the record, that mistake ought to be rectified within four years from the date of the assessment order. But, in the instant case, it is common ground that it is more than four years and the department has not corrected that mistake. In view of this, section 35 (1) would not be helpful.
Sri Kondaiah, the learned counsel for the department, realising this, mainly relief on section 35 (5). This section was incorporated by section 19 of the Indian Income-tax (Amendment) Act, 1953 (XXV of 1953), with effect from April 1, 1952. This provision can only be invoked where, in respect of any completed assessment of a partner in a firm, it is found on the assessment or reassessment of the firm or on any reduction or enhancement made in the income of the firm under section 31, 33, 33A, 33B, 66 or 66A that the share of the partner in the profit or loss of the firm has not been included in the assessment of the partner, or if included, is not correct. The purpose and object of section 35(5) is the inclusion of the share in the profit or loss of the firm in the assessment of the partner, or the correction thereof, as the case may be; and such a correction or inclusion would be a rectification of a mistake apparent from the record. This section, therefore, can only apply if the following three conditions are satisfied, viz., (1) that the share of the partner in the profit or loss of the firm has not been included in the assessment of the partner; (2) that it is so found on an assessment or reassessment of the firm or on any reduction or enhancement made in the income of the firm under section 31, 33, 33A, 33B, 66 or 66A; and (3) that it is desired to include the share income in the partners assessment or to correct the share income, as the case may be. The period of limitation prescribed for making the rectification in this provision is different from that prescribed for rectification under section 35 (1). Under section 35 (5) the period of four years is to be taken from the date of the final order passed in respect of the firm; whereas under section 35 (1), it is four years from the date of the order of assessment of the individual partner. It usually happens that the assessment of a firm is made only years after the assessment in respect of the individual partner is made. If after a lapse of some years after the individual assessment order, a rectification arising under section 35 (5) is to be made and if that opportunity can be availed of by the Income-tax Officer for rectifying other mistakes coming exclusively under section 35 (1), and not at all under section 35 (5), the period of limitation prescribe under section 35 (1) will become wholly nugatory. Further, if the inclusion of the share and correction of the assessment were an error apparent from the record, falling under sub-section (1) of section 35, the enactment of sub-section (5) was unnecessary. This provision, as stated earlier, was incorporated by an amendment obviously made for the purpose of enabling the result of a subsequent assessment or modification in the assessment of the firm to be given effect in respect of the completed individual assessment of a partner. It could not have, therefore, been intended to give any extended operation. Its operation has, therefore, to be confined to its appropriate sphere within its ambit and not be permitted to make unauthorised inroads on the finality of individual assessment.
We may in this connection refer to the decision of the Judicial Committee in Commissioner of Income-tax v. Khemchand Ramdas. The headnote given in the report reads as follows :
'Though the Indian Income-tax Act nowhere imposes any limit of time within which an assessment under the provisions of section 23 and 29 is to be made and the service of notice of demand can therefore be made at any time, yet, after a final assessment under those sections has been made, the Income-tax Officer cannot go on making fresh computations and issuing fresh notices of demand to the end of all time. A final assessment once made cannot be reopened except in circumstances detailed in sections 34 and 35 of the Act and within the time limited by those sections. The Commissioners powers under section 33 can only be exercised subject to the provisions of sections 34 and 35. The provisions of these 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 notices of demand can be issued.'
In the instant case, it is admitted that in all the returns the petitioner had shown himself as a partner of two different firms in each of which one of the minor sons was admitted to the benefits of the partnership. In spite of this, the order of assessment of the father-partner did not take into account the share income of the minor sons. What is more, the minor sons were separately assessed in respect of their share income and the tax was collected from them. Assuming that the non-inclusion of the minor sons share of profits in the total income of the petitioner was a mistake apparent from the assessment records of the petitioner, we find it difficult to say that this mistake has anything to do with section 35 (5). It might have been possible for the Income-tax Officer to correct the error in the order of the assessment of the petitioner within four years of the passing of that order, but he did not do so. He was content to assess the petitioner and his minor sons separately and collect the tax from each of them. What he did not do directly, he cannot be permitted to do indirectly by resorting to section 35 (5). This cannot be a justifiable method of putting to use the provisions of section 35 (5). We are, therefore, clear that section 33 (5) does not apply to the facts of the instant case and the department cannot be permitted to correct the mistake under this provision.
It is next urged by Sri C. Kondaiah, the learned counsel for the department, that as the rectification sought to be made is just and proper, inasmuch as the share-income of the minor sons in the partnership firm should have been included in the petitioner as per the provisions of the Act, the learned judge ought to have refused to exercise his discretion under article 226 of the Constitution of India. Sri K. Ramachandra Rao, the learned counsel for the respondent, while accepting that under section 16 (3) (a) (ii) the income of the minor sons has to be included in computing the total income of an individual for purposes of assessment, contended that could have been only done if there was a mistake apparent on the face of the record and that too within four years from the date of the assessment order and, the same not having been done, the department cannot now try to correct that mistake under section 35 (5) of the Act. The learned judge, he urges, was right in exercising his discretion under article 226 of the Constitution. The learned counsel cited a number of authorities to support his contention but we do not wish to discuss those cases in detail for, in our opinion, the bar of limitation is a bar affecting jurisdiction and, therefore, the learned judge was right in exercising his discretion under article 226 of the Constitution.
Yet another argument was advanced by Sri Kondaiah that, since another remedy was available to the petitioner, he cannot invoke the jurisdiction of this court. What is argued is this : that if the new Act is held to be applicable, the writ petition would become non-maintainable. We do not propose to go into this question for the simple reason that we have held earlier that the new Act is not applicable.
In the result, we do not see any substance in these appeals. They are dismissed with costs. Advocates fee Rs. 500 in all the four appeals.
Appeals dismissed.