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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 ..... 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. There was an allegation that the factory had been sold on the 1st of September, 1959, for Rs. 2 lakhs. The Income-tax Officer, who had completed the assessment of the association of persons for the assessment year 1960-61, ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. The contention of Mr. Awasthy, the learned counsel for the department, is that there was no order of reassessment by the Income tax Officer under section 34 and, therefore, section 33B(2) is no bar to the order of the Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 under section 34. The view we have taken of the matter clearly finds support from the decision of the Supreme Court in Esthuri Aswathiah v. Income-tax Officer 1. A similar order in an assessment proceeding under section 23(1) was held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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-tax . On the facts of that case, their Lordships of the Supreme Court came to the firm conclusion that there was no return filed and in the absence of a return there can be no question of there being an assessment, particularly when the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hus, 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. So far as the present case is concerned, we have not the least doubt that the words " proceeding filed " clearly amount to an order of reassessment. We have already indicated the circumstances in which this cryptic order was passed. In fa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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