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TMI Blog1974 (7) TMI 96X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the assessing officer that in the orders of assessment, passed in respect of the periods with which we are concerned in these cases, there were mistakes apparent from the record which required to be rectified under the provisions of section 25A of the Karnataka Sales Tax Act. He, therefore, issued notices to the petitioner which was served on 31st January, 1970, to show cause as to why the orders of assessment in question should not be rectified in accordance with law. The orders of rectification were passed in relation to the periods covered by W.P. Nos. 829 of 1974, 830 of 1974 and 831 of 1974 on 30th January, 1974, and in relation to the period covered by W.P. No. 1556 of 1974, the order of rectification was passed on 23rd February, 1974. Aggrieved by the orders of rectification passed by the assessing officer, the petitioner has filed these four writ petitions. 2.. Since a common question of law arises for consideration in these cases, they are disposed of by this common judgment. 3.. The only contention urged in respect of these writ petitions by Sri K. Srinivasan, the learned counsel for the petitioner, is that the orders of rectification are liable to be quashed, be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the fact that action had been initiated by issue of a notice by the authority concerned to the assessee before the expiry of period of five years from the date of the original order, expressing his intention to do so, and calling upon the assessee to show cause as to why such rectification should not be made, it is contended that the expression "amend" connotes the passing of the final order of rectification and does not mean mere initiation of proceedings to amend by issue of notice to the assessee. 5.. The learned counsel for the petitioner relied upon a decision of a Division Bench of this Court in K.G. Subramanya v. T.V. Reddi, Commissioner of Agricultural Income-tax[1969] 73 I.T.R. 499; [1969] 1 Mys. L.J. 274., in which section 35(2) of the Karnataka Agricultural Income-tax Act came up for consideration. Under section 35 of the Act, the Commissioner has been given the power to revise an order of assessment passed by any of his subordinate authorities and to enhance the tax payable by the assessee if, in his opinion, the order of assessment passed by the subordinate authority is prejudicial to the revenue. Subsection (2) of section 35, however, provides that no order shall b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the assessing authority to pass an order of reassessment under rule 33(1), even though action had been taken by the assessing authority to reassess the dealer by issuing necessary notices within the period prescribed by rule 33(1). The department filed an appeal against the order of the High Court of Kerala before the Supreme Court. In that appeal, the Supreme Court while considering the contention urged on behalf of the assessee that the expression "determine" appearing in rule 33(1) meant to "settle or discharge" and not "to proceed to assess", observed as follows: "Now in view of the previous decisions the principle is firmly established that assessment proceedings under the Sales Tax Act must be held to be pending from the time the proceedings are initiated until they are terminated by a final order of assessment. The distinguishing feature on which emphasis has been laid by the counsel for the respondent is that the language employed in rule 33 is such as to lead to only one conclusion that the final determination of the turnover which has escaped assessment and the assessment of the tax have to be done within three years. It is pointed out that in the other sales tax pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be held that the order of rectification passed after the expiry of the period of five years pursuant to the notice so issued would not be a defective one. Sri K. Srinivasan tried to distinguish the decision of the Supreme Court from the present case on two grounds: (1) that the Supreme Court was concerned in the above case with a rule which provided for reassessment of the turnover of a dealer but not with a provision relating to the power of an authority to rectify a mistake in an order of assessment and (2) that the language used in section 25A of the Act would bring it within the scope of the observation of the Supreme Court in the above decision, namely,"It is undoubtedly open to the legislature or the rule-making authority to make its intention quite clear that on the expiry of a specified period no final order of assessment can be made. Then the taxing authorities would certainly be debarred from completing the assessment beyond the period prescribed as was the case in sub-section (3) of section 34 of the Income-tax Act, 1922; but such is not the case here and we would hold that the assessment proceedings relating to the year 1962-63 were within time." I do not think ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f section 34(3) of the Income-tax Act, 1922. Section 34(3) of the Income-tax Act, 1922, provided that no order of assessment or reassessment, other than an order of assessment under section 23 to which clause (c) of sub-section (1) of section 28 applies or an order of assessment or reassessment in cases falling within clause (a) of sub-section (1) or sub-section (1A) of this section shall be made after the expiry of four years from the end of the year in which the income, profits or gains were first assessable. Section 25A of the Act is not in the same language in which section 34(3) of the Income-tax Act, 1922, is couched. The above observation is sufficient to distinguish the decision of the Division Bench of this Court in K.G. Subramanya v. T.V. Reddi, Commissioner of Agricultural Income-tax[1969] 73 I.T.R. 499; [1969] 1 Mys. L.J. 274. also because sub-section (2) of section 35 of the Karnataka Agricultural Income-tax Act also provided that no order should be made under sub-section (1) of section 35 after the expiry of four years from the date of the order sought to be revised. I am of the view that the language used in section 25A of the Act is analogous to the language used ..... X X X X Extracts X X X X X X X X Extracts X X X X
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