TMI Blog1974 (6) TMI 29X X X X Extracts X X X X X X X X Extracts X X X X ..... posed of by the Appellate Assistant Commissioner of Income-tax, the Income-tax Officer realised that the depreciation allowance allowed by him at the time of assessment was excessive. He therefore, issued a notice under section 154 of the Income-tax Act, 1961, calling upon the petitioner to show cause as to why the mistake alleged to have been committed by him earlier should not be rectified. The petitioner challenged the said notice in Writ Petition No. 2183 of 1968 on the file of this court. In the course of the said proceedings, it was submitted on behalf of the revenue that the notice should be treated as one issued under section 35 of the 1922 Act as it was permissible to do so because there was a mistake apparent on the record. At thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment year in which the income was first assessable or the expiry of one year from the date of service of the notice under section 148, whichever was later. It is not disputed that any action taken under section 147(b) of the 1961 Act would have been barred by time when the notice was issued in this case for purposes of rectification of the order of assessment. On these facts, it is argued that any action taken under section 35 of the 1922 Act for rectiying the mistake referred to above would be violative of article 14 of the Constitution. It is the common case of the parties before me that the error in question was capable of being corrected either under section 35 of the 1922 Act because it was a mistake apparent on the record or und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Income (Investigation Commission) Act, 1947. In that case the assessee against whom action was taken under section 5 of the said Act contended before the Supreme Court that in view of section 34 of the 1922 Act (which was similar to section 147 of the 1961 Act) which was also applicable to his case, the impugned action was liable to be struck down under article 14 of the Constitution. The Supreme Court upheld the said contention by pointing out that section 34 of the 1922 Act was also applicable to the case of the assessee before it and that by having recourse to section 5 of the Taxation on Income (Investigation Commission) Act, 1947, the assessee was deprived of his right of appeal, which he would have had if action had been taken under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er section 11(4)(a) and section 11A(1). Therefore, it was open to the assessing authority to proceed against them under any one of those two sections. But as they were proceeded against under section 11(4)(a) they cannot have the benefit of the period of limitation prescribed under section 11A(1), Hence, it must be held that the present case falls within the rule laid down by this court in Suraj Mall Mohta Co. v. Visvanatha Sastri. On the facts found it follows that section 11(4)(a) has become a discriminatory provision in view of section 11A(3). Hence, the same is liable to be struck down under article 14. But for the inclusion of sub-section (3) in section 11A, there would have been no discrimination between those dealt with under secti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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