The limitation for rectification for a particular mistake shall run from the date of the initial order of assessment and not the subsequent rectificatory order.

Ajit K. Sengupta, J.

1. IN this reference under Section 256(1) of the INcome-tax Act, 1961, the Tribunal has referred the following question at the instance of the Revenue relevant to the assessment years 1976-77 to 1980-81 :

"On the facts and in the circumstances of the case whether the Tribunal is justified in holding that the mistake which the assessee seeks to get rectified has occurred in the set of rectification orders passed under Section 154 of the INcome-tax Act, 1961, on July 12, 1982, and that date should be taken into account for purposes of computing the period of limitation ?"

2. AS the question indicates there was a set of rectification orders in respect of the assessment years and a further mistake occurring in such rectification orders is sought to be rectified by the assessee which the Revenue contends against on the ground that for computing the period of limitation for rectification the date of the original order is relevant and not the date on which the rectification orders were passed.

The following table abstracts the various dates which have a bearing on the issue involved :

3. THE assessee's grievance had its genesis in the following circumstances. In the income-tax returns filed by the assessee for the five assessment years under consideration, the assessee had claimed depreciation on factory buildings at five per cent. THE assessments were completed, inter alia, on that basis. It is a matter of record that the assessee did not at any time prior to July, 1986, file any rectification application specifically claiming that the allowance of depreciation at five per cent. instead of ten per cent. on the factory buildings constituted a mistake apparent from the record. As pointed out earlier on July 12, 1982, the Income-tax Officer passed rectification orders dealing, inter alia, with the question of extra shift allowance. At that time also the assessee did not specifically raise the issue relating to factory buildings. THE assessee had filed appeals before the Commissioner of Income-tax (Appeals) for the assessment years in question. Even at that stage the question of depreciation admissible on factory buildings was not raised.

4. ON July 4, 1986, the assessee filed a rectification petition claiming, inter alia, that for the assessment years 1976-77 to 1983-84, depreciation on factory buildings was wrongly allowed at five per cent. instead of ten per cent. It would appear that in the course of the discussions that took place with the Income-tax Officer on this matter the assessee had contended that the rectification petition dated July 4, 1986, was not hit by the bar of limitation if July 12, 1982, the date on which the orders under Section 154 were passed by the Income-tax Officer for these years, was taken into account. The Income-tax Officer was not impressed by the assessee's argument in this regard. The Income-tax Officer, on his part, held that for the assessment years 1976-77 to 1980-81, the period of limitation ran from the respective dates on which the original assessment orders were passed for these years. ON this basis, the Income-tax Officer negatived the assessee's claim for the five years under examination. (As for the assessment years 1981-82 to 1985-84, the Income-tax Officer allowed the assessee's application).

The assessee took up the matter in appeal before the Commissioner of Income-tax (Appeals ). On an examination of the facts and circumstances of the case as also the legal position, the Commissioner of Income-tax (Appeals) dismissed the assessee's appeals.

5. THEREUPON, the assessee approached the Tribunal. On an examination of the facts and circumstances of the case and following the decision of the Patna High Court in the case of Bihar State Road Transport Corporation v. CIT [1986] 162 ITR 114, the Tribunal held that the assessee was entitled to succeed. It may here be highlighted that the Tribunal distinguished the decision of the Calcutta High Court in the case of Bengal A