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TMI Blog1995 (1) TMI 415X X X X Extracts X X X X X X X X Extracts X X X X ..... on 12th July, 1982. Thereafter, the assessee again applied for rectification of the, fresh order of 12th July, 1982 on 4th July, 1986 contending that while he was entitled to depreciation allowance on factory building at the rate of 10%, he was allowed the depreciation only at the rate of 5%. 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 4th July, 1986 was within 4 years of the fresh order of assessment made on 12th July, 1982 and hence within limitation. On reference, the High Court reversed the order of the Tribunal holding that the period of 4 years is to be calculated from the initial order of assessment, viz., from 21st September, 1979 and not from the fresh order of assessment passed on 12th July, 1982 4. There is no dispute that the assessee would be entitled to 10% 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. 5. Section 154 of the Act, as it s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 re-assessment. The initial order for re-assessment cannot be said to survive, even partially, although the justification for re-assessment 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 subject-matter 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 Jaganmohan Rao v. Commissioner of Income-tax and Excess Profits Tax, Andhra Pradesh [1970]75ITR373(SC) , this Court dealt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sideration in this decision were Sections 12A, 21 and 21(2) and 21(3) of the Mysore Sales Tax Act. The relevant provisions of Section 12A are as under : (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. 9. 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 : (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 the Act by a Commercial Tax Officer subordinate to him and against which no appeal has been preferred to him under Section 20, for the purpose of satisfying h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsiders 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 re-assessment, escapement or wrong deduction shall be 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. x x x 33. Manner of Assessment and re-assessment and imposition of penalty. - (1) Where - (a) a registered dealer has rendered himself liable to tax and penalty under Sub-section (1) of Section 14-A, or (a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld 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 lyer, learned senior counsel cited before us the decisions of the Calcutta, Gujarat, Madras and Orissa High Courts in Bharat Taxtile Works and Ors. v. Income-tax Officer, Circle-IV, 3-A, (Company) [1978]114ITR28(Guj) ; Ahmedabad Sarangpur Mills Co. Ltd. v. A.S. Manohar, Income-Tax Officer, Circle IV, Ward-A, (Companies, Ahmedabad, [1976]102ITR712(Guj) ; Kothari (Madras) Ltd. v. Agricultural Income Tax Officer [1989]177ITR538(Mad) and Commissioner of Income Tax v. Kalinga Tubes (1991) 187 ITR 595 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 other decisions of the Patna and Karnataka High Courts in Bihar State Road Transport Corporation v. Commissioner of Income Tax (1986) ITR 162 114 at 130 and Commissioner of Income-tax, Kamataka-II, Bangalore v. Mysore Iron Steel Ltd. [1986]157ITR531(KAR) respectively which decisions have taken the co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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