TMI Blog2015 (2) TMI 1388X X X X Extracts X X X X X X X X Extracts X X X X ..... which became the operative order. The original order dated 22 nd March, 1996 lost its existence. The law well settled is that two operative orders cannot coexist in the same field. The order of assessment passed on 22nd March, 1996 was admittedly amended on 27th December, 1999 in order to give effect to the appellate order. The order dated 22nd March, 1996 merged into the order dated 27th December, 1999. The Income Tax Act is a special legislation. Therefore, questions arising out of the aforesaid Act have to be answered taking recourse to the provisions contained therein. But in case of doubt or difficulty assistance can be taken from the general law of the land. The cause of action for rectification is evidently a mistake. It is the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome Tax Act for the assessment year 1993-94 was passed on 22nd March, 1996 allowing deduction of a sum of Rs. 12,05,20,580/- under Chapter VIA without setting off unabsorbed depreciation. The original order dated 22nd March, 1996 was amended on 21st December, 1999 in order to give effect to an appellate order arising out of an appeal preferred by the assessee. The deduction allowed by the order dated 22nd March, 1996 under Chapter VIA without setting off unabsorbed depreciation was rectified under Section 154 by an order dated 9th September, 2003. Contention raised by the assessee was that the rectification by the order dated 9th September, 2003 was barred by limitation since the original order sought to be rectified was passed on 22nd M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allowed and the order dated 21st September, 1979 was rectified on 12th July, 1982. The assessee once again applied for rectification on 4th July, 1986 contending that depreciation allowance was receivable by him at the rate of 10% whereas only 5% was allowed. The Appellate Tribunal held that the application made on 4th July, 1986 was within the period of four years from the fresh order of assessment made on 12th July, 1982. The High Court in a reference set aside the order of the Tribunal. The Supreme Court held that the word order was not qualified in any way and it did not necessarily mean the original order and therefore, the view taken by the Tribunal was the correct view. In the present case, the order under section 154 was passed on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with regard to interpretation of explanation (c) appended to sub-section (1) of Section 263 which merely means that the power of the Commissioner to revise an order does not extend to such matters which have been considered and decided in an appeal. The reason is very simple. An original order can be subjected to a revisional proceeding or to an appellate proceeding but an appellate order cannot be subjected to a revisional proceeding. This is what has been sought to be clarified by clause (c). The judgment cited has no manner of application to the facts and circumstances of this case before us. The learned advocate submitted that the order rectified on 9th September, 2003 is the order dated 27th December, 1999 as would appear from the foll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itation. The order was accordingly quashed. In doing so the CIT(A) failed to consider the decision of the Supreme Court in Hind Wire Industries Ltd. (Supra) He laid stress on the fact that the CIT(A) observed that the mistake continued in the order under Section 143(3)/251 dated 27th December, 1999. But, the order arising out of an appeal which necessitated the order dated 27th December, 1999, he contended, was preferred by the assessee and it is because the assessee s appeal succeeded that the order was passed on 27th December, 1999. The question of any mistaken allowance was not the subject matter of appeal. Therefore, the order dated 27th December, 1999 could not have given a starting point of limitation. This submission, accord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubt or difficulty assistance can be taken from the general law of the land. The cause of action for rectification is evidently a mistake. It is the mistake, which is sought to be rectified. A cause of action to rectify a mistake, in the general law of the land, does not arise until the mistake has been discovered. Therefore, Section 17 of the Limitation Act provides that the period of limitation in a suit or an application governed by the Limitation Act shall commence from the date of discovery of the mistake. The revenue in this case is however armed with the judgment of the Apex Court in the case of Hind Wire (supra). For the aforesaid reasons, we are of the opinion that the proceedings under Section 154 were within the prescribed time ..... X X X X Extracts X X X X X X X X Extracts X X X X
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