JUDGMENT

1. By this application under Article 226 of the Constitution of India the jurisdiction of the respondent-Income-tax Officer to issue a notice under section 154 of the Income-tax Act, 1961, and to take proceedings thereunder are challenged. The petitioner, Narsingdas Bangur, was a partner of Magniram Bangur & Co., a firm which was assessed as a registered firm under the Indian Income-tax Act, 1922, until the time hereinafter mentioned. For the assessment year 1961–62, the accounting year of the said firm was the Sambat year 2016, ending on the 20th October, 1960. By an agreement between the partners of the said firm it was decided that a company under the name of Magniram Bangur & Co. (P.) Ltd. would be incorporated and all the assets and liabilities of the firm would be transferred to the said company. In accordance with the said agreement the memorandum and articles of association of the proposed company were executed on October 18, 1960, and the said company was registered under the Companies Act on October 21, 1960. For the assessment year 1961–62, for which the accounting year was the Sambat year 2016, the aforesaid firm claimed before the Income-tax Officer that its income for that year was exempt from taxation under the provisions of section 25(4) of the Income-tax Act, 1922 (hereinafter referred to as the old Act). The Income-tax Officer rejected the contention and made an assessment on the firm for the said year determining the total income at Rs. 6,92,508. In the appeal by the firm against the aforesaid order of assessment the Appellate Assistant Commissioner by his order dated the 31st March, 1967, held, inter alia, that the entire income of the firm was entitled to exemption from tax under section 25(4) of the old Act and similar relief should also be allowed to the partners of the firm on their share of income from the firm, both in respect of income-tax and super-tax. The regular assessment of the petitioner for the year 1961–62 was completed by the respondent-Income-tax Officer on the 30th September, 1963, including therein his share income from the said firm and also giving him credit for the proportionate share of the amount by which the dividends recovered by the firm had been grossed up. After the aforesaid order of the Appellate Assistant Commissioner in the appeal by the firm, the petitioner's assessment was rectified under section 154 of the Income-tax Act, 1961, by an order dated the 14th September, 1967, and the share of income from the firm of Messrs. Magniram Bangur & Co. was deleted from the assessee's total income but the tax credit in respect of the dividends and interest on securities and for payments of advance tax under section 18 of the Old Act and section 151 of the 1961 Act were allowed and in consequence a sum of Rs. 85,705.77 was determined as refundable to the petitioner.

2. Thereafter by a notice, No. CCI/67-68/644, dated the 18th November, 1967, the respondent-Income-tax Officer notified the petitioner that the credit for tax under section 18(5) in respect of the dividends grossed up under section 16(2) of the Income-tax Act, 1922, in the assessment of M/s. Mugniram Bangur & Company had been allowed to the petitioner but as the entire income of that firm for the assessment year 1961–62 was exempt from tax, such dividends should not have been grossed up under section 16(2) and no tax credit under section 18(5) should have been allowed as the said dividends were not includible in the total income of the firm. The allowance of the credit was a mistake apparent from the record which the respondent proposed to rectify under section 154 of the 1961 Act. The petitioner was further notified that the above letter might be treated as a notice of the proposed rectification and the petitioner's objection, if any, might be lodged within 15 days of the receipt thereof. If the petitioner desired to be heard in person he might attend before the respondent on the 8th December, 1967, at 3 p.m In response to the said purported notice, the petitioner by his letter dated the 28th November, 1967, pointed out that the fact that the firm's income was exempt from assessment to tax did not debar it from the benefit of grossing up under sections 16(2) and 18(5) of the old Act and that the assessee was also entitled to his proportionate share of the tax deemed to have been paid on behalf of the firm on the said grossing up. Further, the petitioner challenged the jurisdiction of the respondent-Income-tax Officer to issue the purported notice under section 154 as it was contended that there was no error apparent on the face of the record which could give the respondent-Income-tax Officer the juridiction to issue such a notice. This application was moved on the 7th December, 1967, and a rule obtained on the respondent-Income-tax Officer, the Commissioner of Income-tax and the Union of India to show cause why the impugned notice and all the proceedings taken thereunder should not be quashed. An interim injunction was granted restraining the respondent from taking any proceedings under the impugned notice.

3. In the affidavit-in-opposition affirmed by the respondent No. 1 the only ground taken is against the maintainability of the application. It is contended that as, under the order of the Appellate Assistant Commissioner, the entire dividend income of the firm was exempted under section 25(4) of the Income-tax Act, 1922, and the proportionate share thereof not included in the total income of the petitioner, there could be no question of the petitioner's getting credit for the increased dividend as grossed up under the provisions of section 16(2) or being allowed any notional credit therefor in his own assessment. As the dividends had been mistakenly grossed up under section 16(2) they were not to be included in the total income of the firm for allowing any notional credit to the partners thereof. Any refund or credit in respect of such notional credit was allowed by mistake which was an error apparent on the record and could be rectified under section 154.

4. Mr. Bajoria, the learned junior appearing with Dr. Pal for the petitioner, submitted that the assessment of the income of the assessee for a particular year has to be made and the total income determined even though it is held that the entire income is exempt from tax under section 25(4). If in such computation dividend income has been grossed up and credit has been given to the assessee for the tax deemed to have been paid on his behalf under sections 16(2) and 18(5), he would still be entitled to such grossing up even if his income is exempt from tax for that year. Mr. Bajoria gave two illustrations. He pointed out that if an assessee's income is below the taxable limit in any year but he has some dividend income he is entitled to the benefit of grossing up and if as the result of such grossing up the tax deemed to have been paid on the dividend income becomes refundable to him, he is entitled to such refund. The other illustration given is the case of a charitable trust whose income is exempt from tax under the provisions of section 4. If such a trust has income from dividend such dividend income would be grossed up and the trust would be entitled to refund of the tax deemed to have been paid on its behalf on such grossing up. The learned counsel, therefore, submitted that the fact that in a particular year the assessee's income is exempt from tax is no bar to his benefit of the grossing up of dividend income under the provisions of sections 16(2) and 18(5) of the old Act.

5. The more substantial contention raised on behalf of the petitioner lis that where a rectification requires determination of difficult questions of law or where two opinions are possible the adoption of the rectification procedure under section 154 (old section 35) is not permissible. Before considering the contentions of the petitioners certain provisions of the old Act as well as of the Act of 1961 have got to be considered. section 16(2) of the old Act, before its repeal by the Finance Act of 1959, provided that “For the purposes of inclusion in the total income of an assessee any dividend shall be deemed to be income of the previous year in which it is paid, credited or distributed or deemed to have been paid, credited or distributed to him and shall be increased to such amount as would, if income-tax (but not super tax) at the rate applicable to the total income of the company (without taking into account any rebate allowed or additional income-tax charged) for the financial year in which the dividend is paid, credited or distributed, or deemed to have been paid, credited or distributed, were deducted therefrom, be equal to the amount of the dividend.”

6. The material provisions of section 18(5) of the old Act, before its amendment by the Finance Act, 1959, provide as follows:

“…… any sum by which a dividend has been increased under sub section (2) of section 16, shall be treated as a payment of income-tax or super tax on behalf of the shareholder and credit shall be given to him therefor, in the assessment, if any, made for the following year under this Act.”

7. Substantial changes were made in the provisions relating to the system of grossing up of dividend income by the Finance Act, 1959. Section 16(2) was omitted with effect from 1st April, 1960, but the omission was not to affect any dividend declared by a company on or before the 30th June, 1960, in respect of any previous year relevant to the assessment year prior to the assessment year 1960–61. A new sub-section (3D) was incorporated in section 18 which introduced a new system of deducting taxes on dividends and which was to the following effect:

“(3D) The principal officer of an Indian company or a company which has made the prescribed arrangements for the declaration and payment of dividends within India shall, before making any payment in cash, or before issuing any cheque or warrant in respect of any dividend or before making any distribution or payment to a shareholder of any dividend within the meaning of sub-clause (a) or sub-clause (b) or sub-clause (c) or sub-clause (d) or sub-clause (e) of clause (6A) of section 2, deduct on the amount of such dividend, income-tax and super-tax at the prescribed rates.”

8. Section 18(5) was also correspondingly changed by introducing the words “any deduction made and (paid to the account of the Central Government) in accordance with the provisions of this section shall be treated as a payment of income-tax (or super-tax) on behalf of the shareholder and credit shall be given to him therefor, on the production of the certificate furnished under section 18(9) in the assessment, if any, made for the following year under this Act.” It would, therefore, follow that after the amendments introduced by the Finance Act, 1959, the dividend income was not to be grossed up but the company, at the time of paying the dividend, would deduct the tax at the appropriate rate and the shareholder would be entitled to the credit for the tax actually deducted by the company. In the case of the assessee, for the assessment year 1961–62, the dividend income of the firm was partly grossed up under section 16(2) of the old Act and in respect of the balance of such income the tax had been deducted by the declaring companies under section 18(3D). The other section of the old Act, which requires to be noticed is section 25, sub-section (3) of which exempts the income of an assessee whose business had suffered tax under the Income-tax Act, 1918, and who had discontinued his business during the accounting year while sub-section (4) allows such exemption in the case of a succession to the business and is to the following effect: “Where the person, who was at the commencement of the Indian Income-tax (Amendment) Act, 1939, carrying on any business, profession or vocation on which tax was at any time charged under the provisions of the Indian Income-tax Act, 1918, is succeeded in such capacity by another person, the change not being merely a change in the constitution of a partnership, no tax shall be payable by the first mentioned person in respect of the income, profits and gains of the period between the end of the previous year and the date of such succession, and such person may further claim that the income, profits and gains of the previous year shall be deemed to have been the income, profits and gains of the said period. Where any such claim is made, an assessment shall be made on the basis of the income, profits and gains of the said period, and, if an amount of tax has already been paid in respect of the income, profits and gains of the previous year exceeding the amount payable on the basis of such assessment, a refund shall be given of the difference”. The only other section that needs consideration is section 154 of the 1961 Act, which corresponds to section 35 of the old Act, the material provisions of which are as follows:

(1) With a view to rectifying any mistake apparent from the record—

(a) the Income-tax Officer may amend any order of assessment or of refund or any other order passed by him……

(1A) Where any matter has been considered and decided in any proceeding by way of appeal or revision relating to an order referred to in sub-section (1), the authority passing such order may, notwithstanding anything contained in any law for the time being in force, amend the order under that sub-section in relation to any matter other than the matter which has been so considered and decided.

(2) Subject to the other provisions of this section, the authority concerned—

(a) may make an amendment under sub-section (1) of its own motion, and

(b) shall make such amendment for rectifying any such mistake which has been brought to its notice by the assessee….

(3) An amendment, which has the effect of enhancing an assessment or reducing a refund or otherwise increasing the liability of the assessee, shall not be made under this section unless the authority concerned has given notice to the assessee of its intention so to do and has allowed the assessee a reasonable opportunity of being heard.”

9. Another section of the old Act also needs consideration. Section 49B, prior to its amendment by the Finance Act, 1959, provided that where any dividend has been paid, credited or distributed or was deemed to have been paid, credited or distributed to any of the persons specified in section 3 who was a shareholder of a company which was assessed to income-tax in the taxable territories such person should, if the dividend is included in its total income, be deemed in respect of such dividend himself to have paid income-tax (exclusive of super tax) of an amount equal to the sum by which the dividend had been increased under section 16(2).

10. Dr. Pal, who took up the argument from his junior at this stage referred me to several reported decisions for his proposition that where a difficult question of law had to be decided or where two views were possible, recourse could not be had by the Income-tax Officer to the provisions of section 154 by way of rectification to amend the order of assessment. The first of the contentions referred to was the decision of the Supreme Court in Maharana Mills (P.) Ltd. v. Income-tax Officer [1959] 361 T.R 350, 358, 359, where the scope of section 35 of the old Act was considered and it was observed that:

“The power under section 35 is no doubt limited to rectification 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 an argument but it is open to the Income-tax Officer to examine the record including the evidence and if he discovers any mistake he is entitled to rectify the error provided that if the result is enhancement of assessment or reducing the refund then notice has to be given to the assessee and he should be allowed a reasonable opportunity of being heard.”

11. In this case the earlier decision of the Supreme Court in Venkatachalam v. Bombay Dyeing and Manufacturing Co. Ltd. was considered. The next case cited by Dr. Pal was the decision of the Bombay High Court in National Rayon Corporation Ltd. v. G.R Bahmani, Income-tax Officer [1965] 56 I.T.R 114 Bom... In the report the headnote represents fairly accurately the decision in that case and is to the following effect:

“The jurisdiction of the Income-tax Officer to make an order for rectification under section 35 of the Indian Income-tax Act, 1922, depends upon the existence of a mistake apparent from the record. That mistake need not be a clerical or mathematical mistake. It may be a mistake of fact as well as a mistake of law. A mistake becomes a mistake apparent from the record when it is glaring, obvious or self-evident mistake. A mistake which has to be discovered by a long drawn process of reasoning or examining arguments on points where there may conceivably be two opinions cannot be said to be a mistake or error which is apparent from the record.”

12. The High Court relied on an observation of the Supreme Court in Satya-narayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tirumale [1960] 1 S.C.R 890 S.C. where in considering what was an error of law apparent on the face of the record the court held that an error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record.

13. Incidentally, in this case the observation of the Supreme Court in Venkata-chalam's case to the effect that a glaring and obvious mistake of law could be rectified under section 35 as much as a mistake of fact apparent from the record was also considered. The next decision having a bearing on the subject-matter is another decision of the Bombay High Court in Burmah-Shell Refineries Ltd. v. G.B Chand, Income-tax Officer [1968] 67 I.T.R 653, 665, 666 Bom.., where the following passage occurs:

“The grounds upon which interference is permissible under the provisions of section 154 of the Income-tax Act, 1961, are in pari materia with the grounds under the old section 35 of the Indian Income-tax Act, 1922, particularly the words ‘with a view to rectifying any mistake apparent from the record’. The meaning of the words ‘apparent from the record’ is now fixed by the construction put on them in several of the decided cases.”

14. Then follows consideration of several decisions of the Bombay High Court, the Supreme Court and a decision of the Madras High Court, and the court concluded:

“As we have said, the error sought to be corrected prima facie did not exist, but even assuming that upon prima facie examination we are wrong, we are completely satisfied that such an error cannot be corrected under section 154 of the Income-tax Act, 1961. We may also add here that it is not open to the authorities to make an error ‘an error apparent from the record’ by ignoring any relevant provision of the law. In the present case we have shown that section 10(2)(vi) had a vital bearing upon the question but in the order of the Income-tax Officer that section was totally ignored, thereby making it appear that the error was a patent and clear error apparent from the record. If the provisions of section 10(2)(vi) are taken into account, questions of a complicated nature would arise in the present case. Such questions cannot be determined under the jurisdiction given to the Income-tax Officer to correct errors apparent from the record.”

15. Finally, Dr. Pal submitted that the question whether the amount by which the dividend income has been grossed up is to be treated as the income of the shareholder is now concluded by the decision of the Supreme Court in Purshot-tamdas Thakurdas v. Commissioner of Income-tax, where the court made the following observations:

“The contention on behalf of the assessee is that section 18(5) read with section 16(2) and section 49B has that effect. The argument on behalf of the respondent is that it has not that effect. In our opinion, the contention urged on behalf of the assessee is correct. Section 16(2) declares in the first part thereof that any dividend shall be deemed to be income of the year in which it is paid, etc., regardless of the question as to when the profits out of which the dividend is paid were earned. A shareholder's right to dividend arises upon its declaration. Under the second part of the sub-section, the net dividend paid to the shareholder is to be” grossed up “before inclusion in the shareholder's total income, by adding thereto the amount of income-tax paid by the company. In general law the company is chargeable to tax on its profits as a distinct taxable entity and it pays the tax in discharge of its own liability and not on behalf of or as agent for its shareholders. This aspect of the matter has been rightly emphasised by learned counsel for the respondent in his reply. While it is true that the company pays its own tax, a legal fiction is introduced by section 49B of the Act. Under that section when a dividend is paid to a shareholder by a company which is assessed to tax, the income-tax (but not super-tax) in respect of such dividend is deemed to have been paid by the shareholder himself. Since the income-tax in respect of the dividend is deemed under section 49B to have been paid by the shareholder himself on his own income, though in reality it was the tax paid by the company in discharge of its own liability, credit is given therefor to the shareholder in the assessment under section 18(5). He is not liable to pay income-tax again in respect of the dividend and may claim a refund under section 48, if the maximum rate of income-tax, which is applicable to companies, is not applicable to him. The combined effect of section 16(2), section 49B and section 18(5) is that the tax-free dividend is not really a dividend of the amount received, but a dividend of a larger sum less the tax thereon, and as in the case of tax-free salaries and tax-free securities, it is the gross amount which is included in the shareholder's total income, because the income-tax paid by the company remains part of the income derived from the shareholding.”

16. Mr. D.K Sen, the learned counsel for the respondent, did not dispute the proposition that where difficult questions of law or of fact are to be determined on which two different opinions are possible the procedure for rectification provided for under section 154 could not be adopted. His submission was that that stage had not yet arrived. The impugned notice gave the petitioner an opportunity to be heard before the Income-tax Officer proposed to pass any orders under section 154. At this stage no prejudice has been caused to the petitioner, and the petitioner is not entitled to come to this court and ask for a high prerogative writ prohibiting the respondent-Income-tax Officer from proceeding with the inquiry. Mr. Sen relied strongly on a very recent decision of B.C Mitra J. reported in Pilani Investment Corporation Ltd. v. Income-tax Officer. It would be necessary to consider this decision somewhat in detail in order to appreciate and deal with the contention raised by Mr. Sen, In that case the petitioner applied for a writ directing the respondent-Income-tax Officer to recall a notice under section 23A of the Income-tax Act, 1922, in May, 1964, directing the petitioner to show cause why an order under that section should not be made in respect of the petitioner's assessment year 1955–56 on the ground that an order under section 23A being an order of assessment, no order under that section could be passed beyond four years from the end of the assessment year being the period of limitation fixed under section 34(3) of that Act. In dealing with that contention Mr. Gouri Mitter for the department contended that the question of limitation could only be raised before the Income-tax Officer and could not be legitimately agitated in a writ proceeding, and for this proposition two decisions of the Supreme Court in Chhotalal Haridas v. M.D Karnik and Lalji Haridas v. R.H Bhatt were cited. The learned judge held:

“In my view, the contentions of Mr. Mitter are well-founded. The two decisions of the Supreme Court discussed above have set at rest any controversy on the question whether an Income-tax Officer has jurisdiction to deal with the question of limitation raised by an assessee. The statute had created a bar of limitation regarding assessment orders in certain cases. The statute has also given the income-tax authorities the power to make such assessment order in cases where the bar of limitation did not apply. It was for the income-tax authorities, therefore, to decide whether an assessment order could be made having regard to the contentions raised on behalf of the petitioner. It is not, in my view, a case of inherent lack of jurisdiction. Indeed, it is the income-tax authorities alone who have the jurisdiction to come to a decision on the question of the bar of limitation and they must decide this question. The writ jurisdiction of this court cannot, in my view, be invoked for a decision in the matter in which the statute has expressly conferred jurisdiction upon the income-tax authorities.”

17. Mr. Sen submitted that in the present case also section 154 has expressly conferred jurisdiction upon the Income-tax Officer to rectify any mistake apparent in the order of assessment. Therefore, there is no inherent lack of jurisdiction in issuing the notice.

18. I am entirely unable to accept this contention. In the present case there is no question of any limitation. The challenge is a challenge to the jurisdiction of the Income-tax Officer to issue the notice under section 154. It is [contended that such jurisdiction depends on the presence of an error apparent on the record and if there is no such error apparent on the record, the Income-tax Officer has no jurisdiction to issue any notice under that section. This is well-established by the various decisions cited by Dr. Pal.

19. The question, where tax credit is given to a shareholder under section 49B of the old Act in a case where the shareholder is a registered firm, and, where the shareholder's income is exempt from tax under certain other provisions of the Act, are the partners of the firm in their individual aseessment entitled to their share of the credit given to the firm in respect of the grossed up dividend, is a very intricate and difficult question to be decided by the proper Tribunal. The Income-tax Officer cannot assume jurisdiction to [decide such a question in the guise of a procedure for rectification of a mistake apparent in his order.

20. The other argument of Mr. Sen, which is also based on the aforesaid decision of B.C Mitra J. that, in any event, as the petitioner has an adequate alternative remedy of going upon appeal against the order under section 154 the court should not exercise its extraordinary jurisdiction under article 226 is also not tenable. The decisions of the Supreme Court relied on both by the learned judge and by Mr. Sen, viz., Abraham's case and Shivram Poddar's case, clearly lay down that the question of alternative remedy would not arise in cases where the taxing authorities are shown to have assumed jurisdiction which they do not possess. As in this case the challenge is to the jurisdiction of the Income-tax Officer to issue the impugned notice, the ratio of those two decisions of the Supreme Court is not applicable.

21. I must, however, point out that the contention of Dr. Pal that the question is concluded by the decision of the Supreme Court in Purshottamdas Thakurdas v. Commissioner of Income-tax does not seem to be quite correct. In that case the Supreme Court considered the case of a shareholder of a company whose dividend income had been grossed up. In a case where the shareholder is a registered firm whose assessed dividend income has been allocated to its partners whether the partners are entitled to the tax credit given to the firm on grossing up, has not been considered. I do not know whether there are any reported decisions of this question, at least none was cited before me.

22. An error apparent on the record is the jurisdictional fact which would invest the Income-tax Officer with jurisdiction to rectify an error under section 154. By a wrong decision of that fact the Income-tax Officer cannot invest himself with such jurisdiction; whether there is an error apparent on the record is certainly justiciable. It is not necessary to refer to the other cases cited by Dr. Pal in reply, viz., Calcutta Discount Co.'s case (which had emphasised the fact that the question of limitation is a question for decision by the income-tax authorities) and East India Commercial Company v. Collector of Customs. Finally, it is to be observed that in Venkatachalam v. Bombay Dyeing & Manufacturing Co. Ltd., the Supreme Court reversed the decision of the Bombay High Court issuing a writ of prohibition against the appellant-Income-tax Officer on the ground that there was no mistake apparent from the record but the Supreme Court never said that the High Court was in error in exercising its writ jurisdiction in the case of rectification of an error under section 35.

23. In the premises, I hold that the Income-tax Officer had no jurisdiction to issue the impugned notice under section 154 of the Income-tax Act, 1961, purporting to correct an alleged error apparent on the record. The rule would, therefore, be made absolute, and a writ of certiorari would issue quashing the aforesaid notice, and further a writ of prohibition would issue prohibiting the respondents from proceeding with the impugned notice and/or any proceedings in connection therewith. There would be no order as to costs of this application.