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TMI Blog1971 (3) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 10(2)(vi). This initial depreciation was disallowed on the ground that the bus MDS 2953 for which additional depreciation allowances were granted was put on road by the petitioner and was run for about a fortnight before being transferred to the partnership of Ramani Bus Service. The firm unsuccessfully appealed on the main order of assessment, and ultimately even in the revision proceedings before the Commissioner of Income-tax the assessment order was confirmed. But, on May 13, 1959, the original authority addressed a letter to the partnership firm under section 35 of the Indian Income-tax Act, 1922, hereinafter referred to as the Act, proposing to revise the assessment for the year 1956-57 as the additional depreciation allowed in the original order was not correct. The firm filed its objections on the merits and sought to justify the grant of additional depreciation which was being questioned in the proceedings under section 35 of the Act. We are not here concerned at this belated stage with the merits on which such allowance was made or disallowance was sought to be maintained. Finally, on January 30, 1961, the original order of assessment made on the firm on June 28, 195 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment order on the firm as it did on January 30, 1961. The facts disclose that the Income-tax Officer disallowed the initial depreciation but granted additional depreciation to the firm. The mainstay of the argument is that the order was subject to appeal and revision to the appropriate authorities and the disallowance of the initial depreciation was fully fought out. It is in this view it is stated that if the mistake was not discovered till all the available avenues of attack on the original order of assessment are over, then it ceases to be an apparent error. If a mistake is apparent, it does not cease to be so on the only ground that the appellate or revisional authorities failed to notice the same. They have obviously committed an error in not noticing it. The further proceedings before the higher hierarchy was only to canvass the correctness of the disallowance of the initial depreciation, which is granted by reason of a special privilege granted by the Act to assessees under certain stated circumstances. In those proceedings there could not have been an argument on the grant of additional depreciation by the assessee since it was to his benefit. It is in such circumstance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 35(1) is non est, then the impugned order which springs from it would be liable to be set aside. I have already held that the first order of rectification under section 35(1) was passed in the rightful exercise of statutory power by the appropriate authority and in this view of the matter, the ancillary contention as above also fails and the order impugned is justified. The second contention based on the plea of limitation has no substance. Section 35(5) is a deeming provision projecting a statutory fiction. It is wholly dependent upon the assessment or reassessment of the firm, in which the assessee concerned is a partner. Reassessment of a firm takes place even if the original order of assessment is rectified under section 35(1). The jurisdiction of the officer to act under section 35(5) being consequential upon such a reassessment of the firm by the appropriate authority, it is to the date of the order of the corrected or rectified assessment of the firm, one should look upon to work out his rights and obligations under section 35(5). One such right a partner of a firm, which has suffered a reopening of the assessment by rectification, has, is to see that the assessment orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment on the firm, an order under section 35(5) was made again as against the individual partner on March 23, 1960. It was in this context that the court held that what survives in such proceedings is the assessment as rectified. If, therefore, it is the rectified order made under section 35(1) that is the order of assessment, vis-a-vis the firm, it would be illogical to say that the period of limitation contemplated in section 35(5) should commence only from the erroneous original order of assessment and not from the corrected order made on the firm under section 35(1). I am, therefore, of the view that the reopening of the assessment made as against the partner, within four years from January 30, 1961, is proper and unassailable. The third contention is that, in the absence of the enumeration of sub-section (1) of section 35 in section 35(5) of the Act, the rectification is not warranted. There is a fallacy in the argument. Section 35(5) reads : " Where in respect of any completed assessment of a partner in a firm it is found on the assessment or reassessment of the firm or on any reduction or enhancement made in the income of the firm under section 31, section 33, section 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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