Appeal No 296 of 1955
Appeal by special leave from the judgment and decree dated September 8 1952 of the Punjab High Court in Civil Regular Second Appeal No 327 of 1948 arising out of the judgment
and decree dated November 21 1947 of the Court of District Judge Amritsar in Appeal No 212 of 1946 from the judgment and decree dated August 20 1946 of the Subordinate Judge 1st Class Amritsar in Suit No 297 of 1945
Achhru Ram and R section Narula for the appellant
Gurbachan Singh and Madan Lal Kapur for the respondent
April 23
The Judgment of the Court was delivered by SARKAR J
The suit out of which this appeal arises concerns the right to certain plots of land in village Sultanwind Tehsil and District Amritsar in the Punjab
It raises a question of the Punjab customs
Sahib Singh the last male owner of the lands in dispute died in December 1918 leaving a widow Nihal Kaur
The widow succeeded to the lands but on tier remarriage soon thereafter she was divested of them and they passed to Sahib Singh s mother Kishen Kaur who died on November 121942
On Kishen Kaur s death disputes arose between Sahib Singh s sister Jeo the respondent in this appeal 783 and his agnatic relation the appellant Ujagar Singh as to the ownership of the lands
The Tehsildar entered the respondent s name as the owner of the lands in the revenue records but on appeal by the appellant the Collector of Amritsar directed the name of the respondent to be removed and the appellant s name to be entered in its place
On June 11 1945 the respondent filed a suit against the appellant asking for a declaration that she was the owner of the lands
In paragraph 3 of the plaint it was stated that the respondent  came into possession of the properties left by Kishen Kaur as the heir of her father and brother according to the Zamindara Custom prevalent in Mauza Sultanwind among the people of the Got Sub caste Bheniwal and the custom of the family of her father 
In paragraph 5 it was stated  According to the afore mentioned special custom the right of inheritance of the daughter and her descendants and in their absence that of the  sister and her descendants to the property left by her father and brother is preferential to that of the collaterals beyond the fifth degree no matter whether the property is ancestral or self acquired
 The defence taken in the written statement of the appellant was that  According to the General Custom and the Custom of the District of Amritsar the plaintiff as his sister is in no way the heir of the property left by her brother in presence of the reversionary heirs no matter whether the land is ancestral qua reversionary heirs or it is self acquired
There is no particular family Got or village custom of the District of Amritsar
 In substance the position taken by the appellant was that he as the agnatic relation or collateral of Sahib Singh was entitled to the properties under the general custom of the Punjab in preference to the respondent
The question that the suit involved was who was the preferential heir of Sahib Singh
The suit was heard by the Subordinate Judge Amritsar who found that the appellant was a collateral of Sahib Singh of the eighth degree and that the properties in dispute were not ancestral
He held that the respondent had based her claim on a special 784 custom but bad not been able to establish it by necessary evidence and therefore the appellant was to be considered as the preferential heir under the general Custom
The respondent then appealed to the District Judge Amritsar
That learned Judge confirmed the findings of the Court below that the land was not ancestral and that the appellant was a collateral of Sahib Singh of the eighth degree
He then held that the general custom of the Punjab among the agriculturists which the parties were was as stated  in para
24 of Rattigan s Digest of the Customary Law of the Punjab that  sisters are usually excluded as well as their issues  and therefore put the onus of proving any special custom entitling the sister to succeed on the respondent
On the evidence led by the respondent he came to the conclusion that she had failed to discharge the onus and thereupon dismissed the appeal
The respondent took the matter up in further appeal to the High Court of Punjab
Kapur J who delivered the main judgment of the High Court observed that para
24 of Rattigan s Digest did not lay down the custom correctly and that the statement there was too broad
He held that the onus of proving the custom whereby a sister was excluded from the inheritance lay on the appellant and that he had failed to discharge that onus
He also held that even if the onus lay on the respondent of proving a custom giving her the right to succeed she had succeeded in discharging that onus
Soni J another member of the bench which heard the appeal delivered a short judgment in effect agreeing with the view of Kapur J
In the result the High Court allowed the appeal and upheld the respondent s claim
The present appeal is from this judgment of the High Court
It is not in dispute that the parties belong to an agriculturist Jat tribe and are members of the Bheniwal sub caste of village Sultanwind in Tehsil and District Amritsar
The genealogical table on the record would show that the appellant was a ninth degree collateral of Sahib Singh and this is what the High Court found
It was not in dispute in the High Court 785 nor before us that the properties were not the ancestral properties of Sahib Singh
Mr Achhru Ram appearing for the appellant contended that the learned Judges of the High Court were wrong in placing the onus on his client
His contention was that the general custom in the Punjab among the agriculturist tribes was that sisters were excluded by collaterals in the matter of succession to both ancestral and non ancestral properties and that custom had been correctly set out in Rattigan s Digest
That being so according to him the respondent was not entitled to the properties unless she established a special custom of the tribe or family entitling her to succeed in preference to the collaterals and the onus of doing this must therefore be on her
He contended that she had failed to discharge the onus
Eminent Judges have from time to time pointed out that the use of the expression  the general custom of the Punjab  is inaccurate
Plowden J in Ralla vs Buddha 1 at page 223 said  It seems expedient to point out that there is strictly speaking no such thing as a custom or a general custom of the Punjab in the same sense as there is a common law of Englanda general custom applicable to all persons throughout the province subject like the English common law to modification in its application by a special custom of a class or by a local custom
 Young C J said in Mussammat Semon vs Shahu 2 There is no such thing as general customary law known to the Legislature   In Kesar Singh vs Achhar Singh 3  Addison A C J said that the expression general custom of the Punjab  was clearly a misnomer
The reason given for saying that there is no such thing as general custom in the Punjab is that custom there is tribal and even with the same tribe there are different customs for different localities
So Sir Charles Roe had said in his Tribal Law in the Punjab  Under such circumstances seeing that the origin of all the tribes is not the same and that even with 1 50 PR I893
2 Lah
10 11
3 Lah
101 106
99 786 tribes of the same origin local and social conditions have greatly differed it would be impossible that there could be a single body of Customary or Tribal law common to the whole of the Punjab  see Rattigan s Digest 13th Ed p 157
Each tribe has its own customs and in the Punjab there are many tribes
None the less however the expression  general custom of the Punjab  has been frequently used
It has been used for a purpose which appears clearly from the observations of Addison J in Kartar Singh vs Mst
Preeto 1 set out below  In fact it had become customary even in the Courts to look upon custom as a thing generally followed and to place the burden of proof upon any person who asserted that his custom was not the same as the so called general custom of the Province
If this person succeeded in proving the custom he alleged the name I special custom  was given to it
 The reported decisions very often proceeded on the basis that if there was a general custom it did not have to be proved that anybody wishing to rely on a custom at variance with the general custom must prove it or fail in his claim
It seems to us wrong to say that a general custom need never be proved
It is stated in Halsbury s Laws of England 3rd Ed Vol 11 article 319 at p 171  All customs of which the Courts do not take the judicial notice must be clearly proved to exist the onus of establishing them being upon the parties relying upon their existence 
No distinction is here made between a general custom and other customs
Section 48 of the Evidence Act also contemplates the Proof of a general custom
In Daya Ram vs Sohel Singh Robertson J said at p 410  
It lies upon the person asserting that he is ruled in regard to a particular matter by custom to prove that he is so governed and not by personal law and further to prove what the particular custom is  These observations were approved by the Judicial 1 Lah
296 299
2 110 PR 1906
787 Committee in Abdul HuSsein Khan vs Bibi Sona Dero 1
It therefore appears to us that the ordinary rule is that all customs general or otherwise have to be proved
Under section 57 of the Evidence Act however nothing need be proved of which courts can take judicial notice
Therefore it is said that if there is a custom of which the courts can take judicial notice it need not be proved
Now the circumstances in which the courts can take judicial notice of a custom were stated by Lord Dunedin in Raja Rama Rao vs Raja of Pittapur 2 in the following words  When a custom or usage whether in regard to a tenure or a contract or a family right is repeatedly brought to the notice of the Courts of a country the Courts may hold that custom or usage to be introduced into the law without necessity of proof in each individual case
 When a custom has been so recognised by the courts it passes into the law of the land and the proof of it then becomes unnecessary under section 571 of the Evidence Act
It appears to us that in the courts in the Punjab the expression  general custom  has really been used in this sense namely that a custom has by repeated recognition by courts become entitled to judicial notice as was said in Bawa Singh vs Mt Taro and Sukhwant Kaur vs Balwant Singh 4
Is there then a custom that sisters are excluded by collaterals in the matter of inheritance to non ancestral properties of which the courts ought to take judicial notice Mr Achhru Ram contends that such is the position and it is recognised as such in Rattigan s Digest paragraph 24
There is no doubt that Rattigan s Digest is of the highest authority on questions of the customs of the Punjab
But we can take judicial notice of a statement of custom therein contained only if it has been well recognised by decisions of courts of law
We have been taken through a large number of reported decisions on the question and it seems to us that the custom as stated by Rattigan 1 1917 LR 45 IA 1O 13
3 AIR 1951 Simla 239
2 1918 LR 45 IA 148 154 155
4 AIR 1951 Simla 242
788 cannot be said to have been so well recognised as to have become entitled to judicial notice from courts without further proof
We find in the law reports a very large number of cases on the subject of a sister s right to inherit one group of which takes the view that there is no custom excluding sisters from inheritance when there are collateral relations of the last male holder and another group taking the contrary view
It would neither be possible nor profitable to refer to all these cases here but some may be mentioned
We shall first mention the cases which do not recognise that a custom excluding sisters from the inheritance exists
In Makhan vs Musammat Nur Bhari 1 certain seventh degree collaterals of the last male holder sued the latter s sister for possession of his properties
No claim appears there to have been made by the collaterals that there was any general custom entitling them to succeed in preference to the sister
The case having been returned to the Chief Court after the enquiry directed by it Elsmie J held  The result of the further enquiry is to show that the plaintiffs have been unable to prove that they are by custom entitled to exclude the sister of the last owner
On the other hand there is some evidence though not much to show that sisters have inherited
It is indeed quite clear that no well defined custom is made out one way or the other The result was that the sister was held entitled to a share of the properties that came to her under the Mohammedan law the parties being Mohammedans and no custom having been proved one way or the other
This was a case decided in 1884
In Sheran vs Mussammat Sharman 2 in which the collaterals were the plaintiffs and the sister the defendant it was observed  On the question of inheritance for the plaintiffs it has been contended that under the general Customary Law of the Punjab governing agricultural communities the collaterals in the male line fifth in 1 116 PR 1884
2 117 PR 1901
789 descent from the common ancestor exclude sisters but we are not prepared to Assent to the wide proposition that such a general custom exists
 It was also there held that there was no general custom in the Mooltan District whereby collaterals were preferred to a sister
In the end no custom having been found to exist favouring either side and the parties being Mahomedans the Mohammedan law was applied and the sister got a share
In Bholi vs Kahna 1 it was remarked that paragraph 24 of Rattigan s Digest was rather broadly stated and hardly warranted by the authorities quoted for and against
In Mussammat Bhari vs Khanun 2 where the contest was between the ninth degree collaterals and a sister the onus of proving that the collaterals were entitled to succeed in preference to the sister was placed on the collaterals who were the plaintiffs in the suit and as the collaterals were unable to discharge the onus placed on them they lost
In Mst
Fatima Bibi vs Shah Nawaz 3 it was said that the general rule laid down in paragraph 24 of Rattigan s Digest was open to the criticism that it was based mainly on authorities regarding ancestral property and on the generally accepted principles of agnatic succession which do not apply in the case of self acquired property
It was also held that the reported decisions were not such that a general rule could be said to exist on the question of a sister s right to succeed which was so widely accepted that it would justify a court in coming to any definite conclusion based on custom
In Samo vs Sahu 4 it was said that the court below was wrong in placing the onus on the sister in a contest between her and the collaterals of the fourth degree for there was no such thing as general customary law known to the legislature and that Rattigan s Digest on Customary Law merely showed that according to judicial decisions a large number of tribes were governed by certain customs in certain matters
1 35 PR 1909
2 20 P R 1919
3 Lah
4 Lah
10 11
790 In Jagat Singh vs Puran Singh 1 a case decided in 1944 it was observed at p 369  As I have indicated above there is no rule of special custom when a contest arises between a sister or a sister s on against a near collateral
Then one has to fall back on general custom
There is no rule of general custom on that point
It is no doubt true that in paragraph 24 of Rattigan s Digest it has been stated that sisters and their sons are in general not heirs but that has been said in very wide terms
It may be applicable to cases of ancestral property but it is difficult to say there is any special rule of general custom when a contest arises between a sister and collaterals of the third or fifth degree and the property is self acquired
 In this case neither a general nor a special custom having been proved to exist the Court based its decision on the personal law of the parties namely the Hindu law
The cases decided since 1950 all take the view that there is no general custom giving collaterals preference to sisters in matters of inheritance
They are Sukhwant Kaur vs Balwant Singh supra Maulu vs Mst
Ishro 2 Harnam Singh vs Mst
Gurdev Kaur 3 and Shrimati Bui vs Ganga Singh 4
We now come to the other group of cases which seem to recognise the general custom excluding sisters from inheritance when there are collaterals of the last male holder
In Hamira vs Ram Singh 5 the Court approved of the decision in Shidan vs Fazal Shah 6 the judgment in which is set out as an appendix to the report
In the latter case the contest was between a sister and collaterals of the seventh degree and it was held that the onus of proving a custom entitling the sisters to succeed rested on them and this was based on paragraph 24 of Rattigan s Digest an entry in the Riwaji i am which applied to the parties and certain reported decisions
Obviously Rattigan was relied upon
1 2 1050 3 4 5 134 PR 1907
6 1907 PR at p 646
791 In Harnamon vs Santa Singh 1 it was said that the burden of proving that the sister was entitled to succeed in preference to a collateral lay on her
The same view was taken in Musammat Nurbhari vs Abdul Ghani Khan 2 Mussammat Hussein Bibi vs Nigahia 3 Jagu vs Bhago 4 Began vs Ali Gohar 5 Kirpa vs Bakshi Singh 6 case decided in 1944 Santi in 1944 and Mussammat Ratni vs Harwant Singh 7In some of these cases paragraph 24 of Rattigan s Digest was expressly approved of as applying to nonancestral properties
It will thus appear that there is a formidable array of authorities in support of either view
In this state of conflict of judicial decisions we are not prepared to say that a custom giving preference to collaterals over sisters in the matter of inheritance to non ancestral properties has been so widely or uniformly recognised by courts as would justify us in taking judicial notice of it
It is important also to note that it is recognised that a Punjab custom is fluid and capable of adapting itself to varying conditions as stated in Hassan vs Jahana 8 and that the decisions for the last ten years are uniformly against the view expressed in paragraph 24 of Rattigan s Digest
We there fore come to the conclusion that the High Court was right in its view that it could not be held on the authority of paragraph 24 in Rattigan s Digest that a general custom excluding sisters from inheritance as against collaterals existed
It was then said that in the plaint it had been admitted by the respondent that there was a general custom as alleged by the appellant and so no proof of that general custom was required in this case
We do not think this contention is justified
No doubt in her plaint the respondent referred to a custom entitling her to succeed and termed it a special custom
We are unable to read the reference to a special custom as 1 I 2 100 PR 1916
3 4 5 AIR 1934 Lah
6 7 8 71 PR 1904
792 amounting to an admission of a general custom or its terms
That being the position we have to see if either side led any evidence in support of its claim
So far as the appellant is concerned he has relied on the alleged general custom and sought to support it by reference to paragraph 24 of Rattigan s Digest
It view of what we have said earlier we do not think that Rattigan s Digest can be taken as correctly laying down the custom on the point
Neither do we think that the reported decisions show the existence of any such general custom
There is nothing else on which the appellant has sought to rely
We therefore think that the appellant has failed to establish the custom alleged by him
We have next to see whether the respondent has proved the custom which she set up
We think that she has
The High Court has discussed the evidence led by the respondent and found it acceptable
We have no reason to take a contrary view Some reference to the evidence may now be made exhibit P 4 Settlement Record of 1852 proves that in the village Sultanwind Sajja Singh and Majja Singh succeeded to the properties of Nodh Singh as his sister s sons in the presence of collaterals
Mr Achhru Ram contended that the statement in exhibit P 4 that Sajja Singh and Majja Singh were the sister s sons of Nodh Singh was wrong for in exhibit P 5 the Settlement Records of 1891 and 1892 they were described as the daughter s sons of Nodh Singh and Baghel Singh his brother
He contended that on the authorities it is clear that on a conflict between two settlement records the later one in date has to be accepted
That appears to have been held in a number of cases of which Alo vs Sher 1 may be mentioned
But it seems to us that this is a point which should have been raised in the trial Court which does not appear to have been done for then the respondent could have led evidence to show which of the two settlement records put the matter correctly
exhibit P 9 which is a settlement record of 1852 of the same village shows that on Gandhi s 1 AIR 1927 Lah
793 death his sister s son succeeded to his properties though there were collaterals
Mr Achhru Ram s comment was that in 1852 things were so unsettled in the Punjab that no one cared for lands and that was the reason why the collaterals allowed Gandhi s sister s son to succeed to his properties
This is an explanation which we are unable to accept
Exhibit P 7 is a settlement document of the Bheniwal tribe in the village Sultanwind prepared in 1891 92
It shows that Mst
Chandi the sister of Buta Singh succeeded to his properties
It was said that the pedigree did not show that any collateral was alive
But this is not right because it shows that Buta Singh s great grand uncle Tara Singh was alive
Mr Achhru Ram says that that must be a mistake and Tara Singh who was Buta Singh s great grand uncle could not have been alive when the latter died
This again is a matter which should have been cleared up in the trial Court and we do not think it right to speculate about it
It remains to consider two entries in the Riwaji iam
We have first the Riwaji i am of 1913 14
The entry there is in this form   Q 70
Does property ever devolve on sisters andor upon their sons  A
All tribes
The property never devolves upon sisters and their issues
 At the foot the case of Bholi vs Kahna 1 is cited
Now it is well established that Riwaji i am entries are to be taken as referring to customs relating to succession to ancestral properties unless it is stated to be otherwise
So it was stated in the Full Bench decision of the Lahore High Court in Mst
Hurmate vs Hoshiaru 2  at p 235  It is reasonable therefore to assume that when manuals of Customary law were originally prepared and subsequently revised the persons questioned unless specifically told to the contrary could normally reply in the light of their own interest alone and that as stated above was confined to the ancestral property 1 35 PR 1909
2 Lah228 235
100 794 only
The fact that on some occasions the questioner had particularly drawn some distinction between ancestral and non ancestral property would not have put them on their guard in every case considering their lack of education and lack of intelligence in general
Similarly the use of the term  in no case  or  under no circumstances  would refer to ancestral property only and not be extended so as to cover selfacquired property unless the context favoured that construction The Full Bench was really authoritatively laying down a rule which had been the prevailing opinion in the courts in the Punjab
In the Riwaji i am of 1913 14 we find nothing in the context to show that the answer there recorded was intended to apply to self acquired property
That being so it does not prove any custom against the right of a sister to inherit the self acquired property of her brother
The other Riwaji i am was that of the year 1940
It was in these terms   Q 68
Does property ever devolve upon sisters or sister s son  A All tribe 1 In the case of an unmarried sister or sisters the property is entered in her or their name till marriage
2 Married sister or sisters or their descendants did not get the property in any case
 Here again there is nothing in the context to indicate that the answers were given in regard to nonancestral property
So this does not help the appellant either
In this Riwaji i am eight instances are given
Some of them deal with the self acquired property
That does not in our opinion indicate that the answer recorded in the Riwaji i am was intended to cover succession to self acquired property also
It is not disputed that the instances mentioned under the entries in the Riwaji i am are often collected by the officer in charge of the preparation of the record
It is impossible to say whether any and if so which instance recorded in the Riwaji i am had been supplied 795 by the tribesmen in answer to questions put to them by the Settlement Officer
It is not possible therefore to say that there is any indication in the instances in this Riwaji i am entry that the answers were intended to cover self acquired property also
Now of the eight instances given in the Riwaji i am two are concerned with self acquired property where there were no collatetals and the sisters were allowed to succeed
The remaining six are concerned with ancestral property
In four of these the last male owner died without leaving any reversioner and in each such case the married sisters succeeded to the property
In the fifth one the sisters were unmarried at the time of the brother s death and they were allowed to take possession of the properties
But this instance shows that on their marriages taking place they were dispossessed of the properties which apparently thereupon went to the collaterals
These seven instances therefore do not help either side
They show that sisters were allowed to succeed in respect of both kinds of properties in the absence of any collaterals and that sisters were on their marriages divested of the ancestral properties to which they had succeeded on their brothers  deaths they being at that time unmarried
The last instance deals with the Rajput Mohammedan tribe of Tehsil Ajnala which is in the District Amritsar the district to which the parties to the present litigation belong
This instance shows that a sister was allowed to succeed to the ancestral property left by the brother in preference to his collaterals of the sixth degree
This therefore is an instance of a custom in a neighbouring Tehsil under which sisters were allowed to succeed in the presence of collaterals nearer in degree than the collateral in the present case
In these circumstances we agree with the learned Judges of the High Court that the respondent was able to prove a custom whereby a sister was entitled to succeed in preference to the collateral relations of her brother
We think it also right to say that even if it had been held that the respondent was not able to establish a custom entitling her to succeed she would get the 796 properties under the Hindu law
The parties are Sikhs to whom the Hindu law applies
Since the Hindu Law of Inheritance Amendment Act 1929 a sister is an heir under the Hindu law in preference to collaterals and that Act would be applicable to the devolution in this case
It is however said that as the respondent had not made any claim in the plaint on the basis of Hindu law but on the contrary relied on custom it was not open to her to fall back on the Hindu law on failing to establish the custom
We do not think that this is the correct position
Section 5 of the  provides that in questions regarding succession the rule of decision shall be a any custom applicable to the parties b the personal law of the parties except in so far as modified by custom or legislation
In the Full Bench case of Daya Ram vs Sohil Singh 1 Robertson J said at p 410 It therefore appears to me clear that when either party to a suit sets up  custom  as a rule of decision it lies upon him to prove the custom which be seeks to apply
If he fails to do so clause b of section 5 of the applies and the rule of decision must be the personal law of the parties subject to other provisions of the clause
 As we have earlier said this observation was approved by the Judicial Committee in Abdul Hussain Khan vs Bibi Sona Dero 2
In Fatima Bibi vs Shah Nawaz 3 a case to which we have earlier referred the Court allowed the plaintiff s sisters who had based their claim on custom and not on the personal law to fall back on Mohammedan law the personal law of the parties on their failure to establish the custom no custom against them having been proved by the collaterals
There are a number of other authorities to which it is not necessary to refer in which personal law was resorted to when no custom on either side was established
We agree that that is the correct view to take
We therefore think that even if the respondent had been unable to prove the custom in 1 110 PR 1906
2 1917 LR 45 IA 10 13
3 Lah
797 her favour she is entitled to succeed in the suit on the basis of the personal law of the parties namely the Hindu law
Further we see no prejudice to the appellant if such a course is adopted
It is not disputed that if the Hindu law applied the respondent would be entitled to the properties in preference to the appellant
The only defence to the claim under the Hindu law that the appellant could take would be a custom
The custom on which the appellant relied for his case was a general custom entitling the collaterals to succeed in preference to sisters
We have earlier held that no such general custom has been proved in this case
There
fore it seems to us in the interest of justice and for the reason that litigation should come to an end that it is right that the respondent should succeed in the suit as her brother s heir under the Hindu law
There remains one other matter to be mentioned
The respondent had filed an application for an order that by reason of certain agreements and certain proceedings arising out of the decree in her favour passed in this case by the High Court the appellant should not have been given leave by this Court to institute the present appeal and the leave granted under article 136 of the Constitution should be revoked
As in our view the respondent succeeds on the merits of the case we think it unnecessary to express any opinion on this question
In the result we dismiss the appeal with costs
Appeal dismissed


Summary:
Sub section 1 Of section 35 of the Indian Income tax Act 1922 provided the Income tax officer may on his own motion rectify any mistake apparent from the record and shall rectify any such mistake which has been brought to his notice by an assesses  Provided that no such rectification shall be made having the effect of enhancing or reducing a 548 refund unless the Income tax Officer has given notice to the assessee of his
intention so to do and has allowed him a reasonable opportunity of being heard
 The appellant a private limited company was assessed to income tax for the assessment year 1953 54 under the provisions of the Indian Income tax Act 1922 and as per the assessment order dated June 30 1955 the amount of depreciation allowed under section 102vi of the Act was Rs 3481O5
On August 8 1955 the appellant made an application before the Income tax Officer for rectification of the order under section 35 of the Act pointing out certain mistakes in calculation in regard to the depreciation amount
By his order of February 27 1956 the Income tax Officer corrected the written down value of the different properties of the appellant and determined the total allowable depreciation to be Rs 194074
The appellant challenged the order dated February 27 1956 on the grounds inter alia 1 that he was not given a written notice of the intended rectification of the written down value 2 that the provisions under which the Income tax Officer acted ie section 35 of the Act was not meant for the purpose of making corrections in written down values the correct provision being section 34 which specifically refers to excessive depreciation and 3 that in any case he had exceeded his jurisdiction under section 35 of the Act in calculating the depreciation on the written down value of the buildings and machinery of the appellant acting suo motu and that he could correct only those mistakes which had been pointed out by it
It was found that notice was given to the appellant of the intended determination of the written down value though it was not a written notice and that the matter was discussed with its representative
Held  i that the object of the provision as to notice under section 35 Of the Indian Income tax Act 1922 is that no order should be passed to the detriment of an assessee without affording him an opportunity for being heard and that if as a matter of factthe assessee knew of the proceedings and the matter had been discussed with him an adverse order would not be invalid merely because no written notice was given
2 that the word  record  used in the phrase  mistake apparent from the record in section 35I of the Act refers not only to the order of assessment but comprises all proceedings on which the assessment order is based and the Income tax Officer is entitled for the purpose of exercising his jurisdiction under section 35 to look into the whole evidence and the law applicable to ascertain whether there was an error
If he doubts the written down value of the previous year it is open to him to check up the previous calculations and if he finds any mistake to make fresh calculations in accordance with the law applicable including the rules made thereunder
A mistake contemplated by this section is not one which is 549 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
Venkatachalam vs Bombay Dyeing  Mfg Co Ltd   Commissioner of Income tax vs Khemchand Ramdas 1938 LR 65 IA 236 and Sidhramappa Andannappa Manviv
Commissioner of Income tax  relied on