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TMI Blog1983 (9) TMI 114X X X X Extracts X X X X X X X X Extracts X X X X ..... o hold the view that depreciation has been allowed at a higher rate and that expenses towards gratuity were wrongly allowed. He issued a show-cause notice dated 10-7-1979 asking the assessee to state his reasons as to why the assessment made under section 143(1) should not be rectified under section 154 or 155 of the Act in order to correct the aforesaid mistakes. The date of hearing was fixed on 23-7-1979. On 19-7-1979, the assessee requested for ten days' time on the ground that the person who looked after the income-tax affairs of the assessee was out of India. This application dated 19-7-1979 was duly received in the office of the ITO as per receipt dated 20-7-1979 stamped on the office copy of the letter in the possession of the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er section 154 do exist and they are liable to be rectified but not under section 154. (iii) As the action under section 154 was taken and completed before the expiry of limitation under section 153, the ITO should approach the IAC for seeking permission to resort to the provisions of section 143(2)(b) and if his IAC permits him to issue a notice under section 143(2)(b) he should rectify the mistake and pass a fresh order." 4. The assessee has accepted the above decision of the AAC ; but, the department has come in appeal against the aforesaid order on the following grounds : " 1. On the facts and in the circumstances of the case, the learned AAC erred in vacating the order passed under section 154 of the Income-tax Act, 1961. 2. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee or the ITO that the assessment as made under section 143(1) requires verification or reconsideration, then section 143(2) provides for that contingency. Section 143(3) refers to making the assessment once again after the original assessment under section 143(1) was reopened for reconsideration at the instance of either party. The Explanation to section 143(3) states the circumstances under which the original assessment made under section 143(1) shall be deemed to be incorrect, inadequate or incomplete in a material respect. One of those circumstances has been stated to be the over allowance of depreciation as has happened in this case. Another circumstance is when the total income determined under section 143(1) is less than the am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns under section 154 will not apply. 7. We have considered the contentions of both the parties as well as the facts on record. We find force in the contention raised for the assessee. The rule that ' the special excludes the general ' is well settled. If any authority for this proposition is required, we may cite the decisions in the cases of CIT v. Saran Singh Ram Singh [1946] 14 ITR 152 (Lahore), Ram Rakha Mal Sons Ltd. v. CIT [1937] 5 ITR 137 (Lahore) and Kikabhoy Chandabhoy v. CIT [1949] 17 ITR 523 (Dom.). In these cases, it has been clearly held that a general provision cannot derogate from a special provision regarding a certain class of cases. On going through the provisions of section 143(1) and the other provisions relevant th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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