Judgment

SHAH, J.- These appeals arise out of orders passed in petitions praying for a writ of mandamus to rectify orders of assessment relating to income assessed to tax for the years 1951-52 and 1952-53. The corresponding previous years for the assessment years were October 1, 1949 to September 30, 1950 and October 1, 1950 to September 30, 1951.

2. Hirday Narain and his five sons were members of a Hindu undivided family. Till the assessment year 1950/51 the income received by Hirday Narain was assessed to tax as the income of a Hindu undivided family. On November 19, 1949 the property of the joint family was partitioned between Hirday Narain and his sons. In assessing the Income for the assessment year 1951-52 the Income-tax Officer recorded an order that the property was partitioned, but he still assessed the income received by Hirday Narain as income of a Hindu undivided family. In appeal the Appellate Assistant Commissioner treated Rs. 18520/- earned between October 1, 1949 and November 18, 1949 as income of the former Hindu undivided family and directed that it be "excluded from the assessment."

3. Pursuant to that order, the Income-tax Officer made two orders of assessment-(1) assessing Rs. 18,520/ as income of the Hindu undivided family of Hirday Narain and his five sons; and (2) assessing Rs. 1,06,156/- also as income of a Hindu undivided family and liable to tax in the hands of Hirday Narain by the application of Sec. 16 (3) (a) (ii) of the Indian Income-tax Act, 1922.

4. Hirday Narain then applied for rectification of a mistake in the order of assessment which he claimed was apparent from the record. He submitted that:

"the assessment of x x x Hirday Narain has been made in the status of Hindu undivided family comprising of himself and his minor son Satendra Prakash. Section 16 (3) (a) (ii) coca not apply to cases of Hindu undivided family , but only to those of Individuals . It is therefore requested that such of the income as has by mistake been included in the assessment of the Hindu undivided family for the said year under Section 16 (3) (a) (ii) may kindly be excluded under See 35 as the mistake is apparent from record." The Income-tax Officer accepted the plea that to income assessed to tax is the hands of Hirday Narain in the status of a Hindu undivided family, Sec. 16 (3) (a) (ii) of the Income-tax Act, 1922, did not apply, but he declined to give relief holding that for the period November 19, 1949 to September 30, 1950 Hirday Narain should have been assessed as an individual.

5. Hirday Narain then moved a petition before the High Court of Allahabad under Article 226 of the Constitution challenging the order of the Income-tax Officer. A single Judge of the High Court rejected the petition holding that at the stage of the original assessment the question the income was not liable to be assessed under Sec. 16 (3) (a) (ii) of the Income-tax Act was not raised and that the assesses had not applied in revision to the Commissioner under Sec. 33-A of the Act. A Division Bench of the High Court confirmed that order in appeal observing that the rectification under Sec. 35 of the Act was "discretionary", and if the Income-tax Officer thought that proceedings were "substantially fair" he was "not bound to rectify the assessment on technical grounds".

The High Court also observed that "it was not clear that after November 19, 1949 there was a Hindu undivided family which Hirday Narain represented and therefore it was possible to say with certainty that the Income-tax Officer was wrong in proceeding on the footing that the assessment could be supported as assessment of an individual.

6. With special leave, Hirday Narain has appealed to this Court.

7. In respect of the period November l9, 1949 to September 30, 1950 the income was assessed in the hands of Hirday Narain in the status of a Hindu undivided family. Section 16 of the Indian Income-tax Act, 1922., by sub-section (3) (a) (ii) provides:

"In computing the total income o