Interference by writ of certiorari.

The legality of an order of the Income-tax Officer refusing to rectify an assessment order passed by him in 1952 is the subject-matter of this petition for the issue of a writ of certiorari to quash this order of refusal.

The assessee is an undivided Hindu family and was represented before the assessing authorities by Annamalai Chettiar who was the kartha of the family. For the assessment year 1951-52, the account year being that ended 13th April, 1951, the assessee filed a return claiming that the joint Hindu family was “resident but not ordinarily resident” and was, therefore, taxable on remittances. The assessee’s return disclosed a loss in its money-lending business in India but there were profits from its business in Malaya which were transmitted to India. On the basis of these remittances the assessee was taxed and the net tax due was ascertained at Rs. 4,151-4-0 in the year of assessment by an order passed on 31st January, 1952. The Income-tax Officer stated: “The assessee being a resident but not ordinarily resident is assessable only on the remittances” and that was the basis on which the assessment was completed. The facts in relation to the status of the assessee as “not ordinarily resident” were set out in a note appended to the relevant return reading thus: —

“Degree of residence — Sri Annamalai Chettiar, kartha of the family was absent in Malacca during the years Sarwajith and Vikruthi. He left Kottayur on 5th Avani Vijaya and reached Malacca on 5th Purattasi Vijaya. He left Malacca on 23rd Adi Sarvathari and reached Kottayur in the first week of Avani Sarvathari. Again, the assessee left Kottayur for Malacca on 29th January, 1950 and reached Malacca on 15th February, 1950. He left Malacca on 27th April, 1951 and reached Kottayur on 9th May, 1951. He was completely absent in Malacca during the years Sarvajith and Vikruthi. He has, therefore, to be treated as ‘not ordinarily resident for the assessment of 1951-52’ (It might be mentioned that for the previous years the assessee was treated as resident and was taxed accordingly).”

The tax demanded as a result of this assessment order was duly paid and nothing more was heard of this till 1955. On the 5th of March, 1955, the assessee presented a petition to the Commissioner of Income-tax under section 33-A (2) drawing his attention to the fact that the manager had been absent from India for the days set out in the note appended to the return for 1951-52 and that there had been a mistake committed both by the Registered Accountant who acted for the assessee in the assessment proceedings as well as by the Income-tax Officer, in treating the assessee as “not ordinarily resident” and claimed that it should have been treated as “nonresident” for the year. The Commissioner of Income-tax dismissed this petition on 8th July, 1955, on two grounds, namely, (1) that the application to him was out of time being more than one year after the date of the assessment order and (2) that even on the merits no case had been made out since the entire control and management of the affairs of the family were not situated without the taxable territories in the assessment year. After receipt of the order of the Commissioner rejecting his petition, the assessee applied to the Income-tax Officer under section 35 to rectify the order of assessment, dated 31st January, 1952, on the basis that a mistake had crept into the order in the assessee being treated as “not ordinarily resident.” The Officer declined to interfere for the reason that the matter had been agitated before the Commissioner and the prayer had been rejected by him. It is this order of the Income-tax Officer that is challenged as illegal in this writ petition.

Two grounds were urged by Mr. Narayanaswami Iyer for the petitioner. The first was that the Income-tax Officer had not applied his mind to the question but had dismissed the assessee’s application merely because the Commissioner had rejected.the petition under section 33-A