K.S. HEGDE, J. (1) THIS appeal certificate has been brought by G. 1. T., Lucknow and Another. The respondent is one K. S. Rashid. He is exparte. (2) THE said K. S. Rashid is one of the partners in a firm M/s. K.S. Rashid and Sons. He held one-third shares in that firm. For the assessment year 1947-1948, the relevant accounting year being 1946-1947, he was assessed on 15/11/1949. The L. T. O. came to the conclusion that in the concerned assessment year, he had incurred a loss of Rs. 25,056.00. There-after the Income Tax Investigation Commission reported that the firms case (Rashid and Sons) had been under-assessed for many years including the assessment year 1947-1948. In pursuance of that report, fresh assessment was made on that firm on 30/05/1951. This court declared the provisions of S. 5(1) and 5(4) of the Investigation Commission Act to be ultra vires. In view of that decision the re-assessment made in the year 1951 was cancelled. But fresh proceedings were started under S. 34 of the Indian Income-tax Act, 1922. On 31/01/1956, the Income-tax Officer, Delhi, reassessed the income of the firm at Rs. 6,24,833.00. The petitioners share in the income for the year 1947-48 was fixed at Rs. 2,08,277/. On 28/02/1956 the Income-tax Officer, A-Ward Meerut passed an order under S. 35(5) of the Indian Income-tax Act, 1922, holding that for the year 1947-48 the petitioner was liable to pay tax upon a net income of Rs. 2,08,277.00. A further order was made but there is no need to refer to that order because that order either stands or falls with the assessment order made by the I. T. O. A-Ward, Meerut on 28/02/1956. (3) THE assessee challenged the order made by the I. T. O. A-Ward, Meerut under S. 35(3) by means of a Writ Petition under Article 226 of the Constitution before the High court of Allahabad. The High court following the decision of this court in Income-tax Officer, V Circle, Madras and Another v. S K. Habibullah and Second Additional Income-tax Officer, Guntur v. Atmala Nagaraj and Others allowed the writ petition and quashed the impugned assessment orders. This appeal is brought against the decision of the High court. The High court following the decision of this court in Income-tax Officer, V Circle, Madras and Another v. S K. Habibullah and Second Additional Income-tax Officer, Guntur v. Atmala Nagaraj and Others allowed the writ petition and quashed the impugned assessment orders. This appeal is brought against the decision of the High court. (4) IN Income-tax Officer V Circle, Madras and Another v. S. K. Habibullah (supra) this court came to the conclusion that clause (5) of S. 35 of the Indian Income Tax Act, 1922 which was enacted by the Income Tax (Amendment) Act, 1953, is not declaratory of the pre-existing law, nor a matter relating to procedure, but affects vested rights, and must be deemed to have come into force only from 1/04/1952. It has no greater retrospective effect than has been expressly granted to it and the power conferred by the said clause to rectify the assessment of a partner of a firm by including or correcting the share of the profit or loss of the firm can, therefore, be exercised only in the case of an assessment of a firm made on or after 1/04/1952. The Income-tax Officer has no jurisdiction under the said clause to rectify the assessment of a partner consequent on the assessment of the firm, in cases where the firms assessment was completed before April I, 1952. It may be noted that in this case the assessment was made before 1/04/1952 and the rectification after that date. The decision in Atmala Nagaraj and Others case, (supra) dealt with a point slightly different from the point that was decided in S. K. Habibullahs cas( (supra). In that case, the original assessment had been made before April 1, 1952 but there was a reassessment after that date. The impugned rectification was based on the reassessment. This court held following tile decision of Habibullahs case and extending the ratio of that decision that the Revenue had no competence to carry out the rectification in question. (5) THE correctness of the decision in Habibullahs case (supra) as well as in Atmala Nagaraj case (supra) came up for consideration before five Judges Bench of this court in Income-tax Officer, Tuticorin v. T. S. Devinatha Nadar and Others This court by a majority upheld the decision in Habibullahs case (supra) but over-ruled the decision in Atmala Nagaraj case (supra). The relevant facts of the case before us are similar to those in Atmala Nagarajs case (supra). That being so, the order of the High court cannot be upheld. (6) IN the result, for the reasons mentioned earlier, we allow this appeal, set aside the order of the High court and dismiss the Writ Petition. In the circumstances of this case, we direct the parties to bear their own costs in this court as well as in the High court.