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TMI Blog1995 (1) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... was rectified on July 12, 1982. Thereafter, the assessee again applied for rectification of the fresh order of July 12, 1982, on July 4, 1986, contending that while he was entitled to depreciation allowance on the factory building at the rate of ten per cent., he was allowed depreciation only at the rate of five per cent. The Income-tax Officer dismissed the assessee's claim on the ground that the application was beyond time. This order was confirmed by the Appellate Assistant Commissioner. In the appeal, the Tribunal, however, allowed the application holding that the application made on July 4, 1986, was within four years of the fresh order of assessment made on July 12, 1982, and hence within limitation. On a reference, the High Court reversed the order of the Tribunal holding that the period of four years is to be calculated from the initial order of assessment, viz., from September 21, 1979, and not from the fresh order of assessment passed on July 12, 1982. There is no dispute that the assessee would be entitled to ten per cent. depreciation allowance on the factory building and it has to be granted to him if it is held that this rectification application was within time. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge 180): "The reason for that is that once an assessment is reopened, the initial order for assessment ceases to be operative. The effect of reopening the assessment is to vacate or set aside the initial order for assessment and to substitute in its place the order made on reassessment. The initial order for reassessment cannot be said to survive, even partially, although the justification for reassessment arises because of turnover escaping assessment in a limited field or only with respect to a part of the matter covered by the initial assessment order. The result of reopening the assessment is that a fresh order for reassessment would have to be made including for those matters in respect of which there is no allegation of the turnover escaping assessment. As it is, we find that in the present case, the assessment orders made under section 12A were comprehensive orders and were not confined merely to matters which had escaped assessment earlier. In the circumstances, the only orders which could be the subjectmatter of revision by the appellant were the orders made under section 12A of the Act and not the initial assessment orders. In the case of V. Jaganmohan Rao v. CIT and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such could be the position in law'." What fell for consideration in this decision were sections 12A, 21, 21(2) and 21(3) of the Mysore Sales Tax Act. The relevant provisions of section 12A are as under (at page 179): " (1) Where for any reason the whole or any part of the turnover of a dealer has escaped assessment to tax or licence fee or has been assessed at a lower rate than the rate at which it is assessable, the assessing authority may, subject to the provisions of sub-section (2), at any time within a period of five years from the expiry of the year to which the tax or licence fee relates, assess to the best of its judgment, the tax or licence fee payable on the turnover referred to after issuing a notice to the dealer and after making such enquiry as it considers necessary. " Section 21 of the said Act deals, inter alia, with revisional powers of the Deputy Commissioner. Sub-sections (2) and (3) of that section read as under (at page 179) : " (2) The Deputy Commissioner may of his own motion call for and examine the record of any order passed or proceeding recorded under the provisions of this Act by a Commercial Tax Officer subordinate to him and against which no a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... five calendar years from the date of order of assessment, after giving the dealer a reasonable opportunity of being heard and after making such enquiry as he considers necessary, proceed in such manner as may be prescribed to reassess within a period of two calendar years from the commencement of such proceedings, the tax payable by such dealer and the Commissioner may, where the omission leading to such reassessment is attributable to the dealer, direct that the dealer shall pay, by way of penalty in addition to the amount of tax so assessed, a sum not exceeding that amount : Provided that in the case of an assessment made under any Act repealed by section 52, the period for reassessment on the ground of underassessment, escapement or wrong deduction shall be as provided in such Act notwithstanding the repeal thereof : Provided further that any reassessment proceedings pending on the date of commencement of the Madhya Pradesh General Sales Tax (Amendment) Act, 1978 (No. 25 of 1978), be completed in accordance with the provisions in force before the date of such commencement and within a period of two calendar years from the date of such commencement. " "33. Manner of assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order. " In view of these authorities taking the view that the word "any" in the expression "order sought to be amended" would mean even the rectified order, we are satisfied that the High Court was wrong in setting aside the decision of the Tribunal. Shri G. Vishwanatha Iyer, learned senior counsel cited before us the decisions of the Calcutta, Gujarat, Madras and Orissa High Courts in Bengal Assam Steamship Co. Ltd. v. CIT [1978] 114 ITR 327 ; Ahmedabad Sarangpur Mills Co. Ltd. v. A. S. Manohar, ITO [1976] 102 ITR 712 ; Kothari (Madras) Ltd. v. Agrl. ITO [1989] 177 ITR 538 and CIT v. Gangaram Chapolia and Co. [1991] 187 ITR 594, respectively, in support of his contention that the word "order" used in the expression " order sought to be amended" would mean the original order of the assessment. As against this, Dr. Shankar Ghose, learned senior counsel, referred us to the decisions of the Patna and Karnataka High Courts in Bihar State Road Transport Corporation v. CIT [1986] 162 ITR 114 at page 130 and CIT v. Mysore Iron and Steel Ltd. [1986] 157 ITR 531, respectively, which decisions have taken the contrary view. However, in view of the decisions of this court referred to above ..... X X X X Extracts X X X X X X X X Extracts X X X X
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