The power to rectify the assessment of a partner under Section 35 (5) of the Indian Income-tax Act, 1922, is dependent upon the assessment or reassessment of the firm, and that assessment must be done in accordance with the law applicable at the time.

( 1 ) IN this appeal we are concerned with the assessment year 1961-62. On the 14th March, 1962, the Income-tax Officer, "e" Ward, Dist. IV (3), made an order of assessment under Section 23 (3) of the Indian Income-tax Act, 1922, against the petitioner for the aforesaid year. on 31st of March, 1966, an order of assessment was passed against the firm, Jaswantrai and Bros. This was a registered firm of which the petitioner was a partner. The said assessment was also for the aforesaid assessment year 1961-62. Thereafter, the Income-tax Officer, "a" Ward, Dist. III (3), Calcutta, gave to the petitioner on the 6th May, 1966, a notice under Section 154/155 of the Income-tax Act, 1961. The purpose of this notice was to rectify the petitioner's assessment made on the 14th March, 1962, upon the assessment of the petitioner's firm on the 31st March, 1966. It has to be borne in mind that the Income-tax Act, 1961, came into effect from 1st of April, 1962. On the 12th May, 1966, respondent No. 1, that is to say, the Income-tax Officer concerned passed an order against the petitioner under Section 154 of the new Act for the assessment year 1961-62, rectifying the assessment on the basis of the completed assessment of the partnership firm. On the 23rd May, 1966, the petitioner was served with a notice of demand under Section 156 of the new Act for the assessment year 1961-62. On the 4th July, 1966, respondent No. 1 gave notice to the petitioner under Section 222 (1) of the new Act requiring the petitioner to show cause why a penalty should not be imposed for non-payment of tax. Thereafter, on 30th December, 1967, the petitioner was served with a notice of demand by the Tax Recovery Officer, Calcutta, with respect to the certificate for Rs. 74,348. 85 forwarded by the Income-tax Officer. The Tax Recovery Officer on the same day, namely, the 30th December, 1967, made an order prohibiting and restraining the petitioner from making any transfer of his shares in the Transport Corporation of India (P.) Ltd. All the aforesaid steps beginning from the notice under Section 154 of the Income-tax Act, 1961, and subsequent thereto mentioned hereinbefore were the subject-matter of challenge in the application under article 226 of the Constitution in this court. The application came up for hearing before Sankar Prasad Mitra J. (as the Chief Justice then was ). By a judgment and order passed on 14th May, 1970, the learned judge has discharged the rule nisi and dismissed the application. This appeal arises out of the aforesaid judgment and order.

( 2 ) IN so far as it was contended that the notice under Section 154 was bad in view of the provisions of Section 297 (2) (a) of the Income-tax Act, 1961, and in view of the fact that the return of the income of the petitioner in his individual capacity had been filed prior to 1st of April, 1962, and the assessment was made before 1st of April, 1962, the learned judge came to the conclusion that the notice was not properly issued under Section 154 of the Income-tax Act, 1961. The learned judge relied on the decision of the Supreme Court in the case of S. Sankappa v. Income-tax Officer, We are in agreement with the aforesaid conclusion of the learned judge. Indeed, not much argument was advanced before us in respect of this and no cross-objection has been filed by the respondent challenging the aforesaid finding of the learned judge.

( 3 ) THE learned judge, however, held that though the notice had been issued under Section 154 of the Income-tax Act, 1961, it should be regarded as a valid notice under Section 35 of the Indian Income-tax Act, 1922, relying on the several decisions of the Supreme Court referred to in the judgment of the learned judge including the decision in the case of L. Hazari Mal Kuthiala v. Income-tax Officer, We are also in agreement with the aforesaid conclusion of the learned judge on this point. The appellant did not concede this point but could not advance any sub