O. Rm.M. Sp. S. vs Meyyappa Chettiar V. Commissioner Of ... on 12 March, 1943
In such cases the law requires a notice to be served upon the assessee under Section 35. In this case the result of the rectification of the error was that the Tribunal had to pass an order to the prejudice of the assessee. The result of the rectification was that the assessment was enhanced and because of that notice had to be served upon the assessee which in fact was served. Our attention has been drawn to the judgment of the Madras High Court in O.Rm.M.Sm.Sv. Sevugan v. Commissioner of Income-tax, Madras. In that case the Madras High Court was not considering at all what was the effect of the order under Section 35. It is true that they did say that Section 35 had a limited application and it does not enable an order to be reversed, revised, or reviewed, but permits only such error which is on the face of the record to be corrected. With respect that position in law is indisputable. But the real decision was that when an order is made under Section 35 it does not lend itself to a reference under Section 66(1). It was held that inasmuch as an order under Section 35 is not an order in revision or review of the original order under Section 33(4) no reference is competent under Section 66(1), because the order under Section 35 is a new order not order in revision or review under Section 33(4). We express no opinion as to whether this is correct view or not, but in any case it does not in any way help us to construe an order made under Section 35 so as to decide what is the effect of an order under Section 35. Therefore, in our opinion, the Tribunal was perfectly competent in rectifying the mistake made by it under Section 35(1), and having rectified it, it was equally competent to pass consequential order which was that the appeal was to be dismissed and not to be allowed.