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TMI Blog1970 (10) TMI 22X X X X Extracts X X X X X X X X Extracts X X X X ..... of the case, the Income-tax Officer's order ' proceedings filed ' was an order of reassessment under the provisions of section 34 and, consequently, the Commissioner of Income-tax was precluded from revising the order by reason of sub-section (2)(a) of section 33B of the Income-tax Act, 1922 ? " On facts there is no dispute. The controversy relates to the assessment year 1960-61. Shri Yash Raj Mehta and Smt. Damyanti Mehta and her sons owned a factory consisting of land, building and machinery. The shares of both the parties were equal. This factory was leased out at an annual rental of Rs. 20,000 to Messrs. Mehta Brothers. The rental income was being assessed in the hands of the assessees in their status as an association of persons. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat had been started by him under section 34(1)(a) of the Act. Against this order, an appeal was preferred by the assessee to the Tribunal. The Tribunal relied upon the decision of the Supreme Court in Esthuri Aswathiah v. Income-tax Officer, Mysore State, and held, that the order of the Income-tax Officer filing the proceedings amounted to an order of assessment or reassessment and, therefore, no proceedings could be initiated under section 33B by the Commissioner. The department was dissatisfied with the order of the Tribunal and applied under section 66(1) of the Act for a reference of the question of law already stated in the opening part of this order for the opinion of this court. That is how the matter has been placed before us. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the supposed sale of 1959, the Income-tax Officer thought if fit to act under section 34. He, accordingly, issued a notice in that behalf to the assessee. The assessee thereupon preferred his objections and his stand was clear and simple, namely, that in fact there was no sale. This stand of the assessee was accepted by the Income-tax Officer. The very basis on which the proceedings under section 34 were started was knocked out and in this situation the order " proceeding filed " was passed by the Income- tax Officer. In that order he clearly made a reference to the assessee's letter. Therefore, in the reassessment proceedings the Income-tax Officer came to the conclusion that there was no basis on which any reassessment could be made unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessed the income as ' nil '. If, thereafter, the Income-tax Officer had reason to believe that the appellants had failed to disclose fully and truly all material facts necessary for assessment for that year, it was open to him to issue a notice for reassessment. " By parity of reasoning and on similar facts the irresistible conclusion is that the present order under section 34 amounts to an order of reassessment and we see no escape from this conclusion. Moreover, there is no difference between assessment and reassessment under the Act. Assessment includes reassessment. Mr. Awasthy, learned counsel for the department, placed reliance on the decision of the Supreme Court in Anglo-French Textile Company Ltd. v. Commissioner of Income-ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... did was to terminate the proceedings before him without making any order of assessment, on the ground that the order of assessment in respect of the income in question would be made by the P. I. T. O. in the proceedings before him. " Thus, in every case it has to be determined on the facts and circumstances thereof as to what do the words "proceedings filed " or "proceedings disposed of " or " filed " or " disposed of " connote or mean ? In one set of circumstances they may not amount to an order of assessment or re- assessment whereas in another set of circumstances these phrases may amount to an order of assessment or reassessment. No hard and fast rule can be laid down. Each case must be determined on its own facts and circumstances. S ..... X X X X Extracts X X X X X X X X Extracts X X X X
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