( 1 ) THE petitioner was an assessee under the provisions of the Income tax Act, 1922. The Income Tax Officer completed the assessment for the year 1961-62 under the 1922 Act on 27-2-1962. While doing so he allowed a sum of Rs. 3,535 as depreciation allowance. An appeal was filed by the assessee against the said order of assessment on other points, but on the question of depreciation allowance there was no appeal. After the appeal was disposed of by the Appellate Asst. Commr. of Income Tax, the Income tax Officer revised that the depreciation allowance allowed by him at the time of assessment was excessive. He, therefore, issued a notice under s. 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 WP. 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 S 35 of the 1922 Act as it was permissible to da so because there was a mistake apparent on the record. At this stage the petitioner raised the contention that no action could be taken under S. 35 of the 1922 Act as it would violate Art. 14 of the Constitution in view of s. 147 of the 1961 Act and S 34 of the 1922 Act This Court without deciding the question whether the action under S. 35 of the 1922 Act was discriminatory or not, disposed of the case reserving liberty to the patitioner to approach this Court in the event of the final order to be passed by the income Tax Officer being against him. Thereafter the Income Tax Officer passed the impugned order under Sec 35 of the 1922 Act disallowing the excessive depreciation allowance which has been allowed by him at the time of the original assessment and calling upon the petitioner to pay extra tax which became payable after rectification Aggrieved by the said order, the petitioner has filed this writ petition. Thereafter the Income Tax Officer passed the impugned order under Sec 35 of the 1922 Act disallowing the excessive depreciation allowance which has been allowed by him at the time of the original assessment and calling upon the petitioner to pay extra tax which became payable after rectification Aggrieved by the said order, the petitioner has filed this writ petition. ( 2 ) THE contention of Sri K. Srinivasan, learned Cqunsel for the petitioner, is that in the circumstances of this case, it was open to the Income Tax officer to take action under Sec. 147 (b) of the 1961 Act also in view of s. 297 (2) (d) of that Act and it action had been taken under S. 147 (b) of that Act, it was open to the petitioner to contend that such action was barred by time in view of S 153 (2) (b) of the 1961 Act which provided that no order of assessment, reassessment or recomputation should be made under S 147 after the expiry of four years from the end of the assessment year in which the income was first asessable or the expiry of one year from the date of sentece of the notice u/s. 148, whichever was later. It is not disputed that any action taken under S. 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 S. 35 of the 1922 Act for rectifying the mistake referred to above would be violative of Art 14 of the Constitution. It is the common case cf the parties before me that the error in question was capable of being corrected either under S. 35 of the 1922 Act because it was a mistake apparent on the record or u S 147 of the 1961 Act because it was a case where excessive depreciation allowance had been computed. If action had been taken under S. 147 (b) of the 1961 Act, the petitioner would have been entitled to file an appeal to the Appellate Asst. Commr. If action had been taken under S. 147 (b) of the 1961 Act, the petitioner would have been entitled to file an appeal to the Appellate Asst. Commr. and a further appeal before the Income Tax Appellate Tribunal with a right to seek a refprencee to the High Court, under the provisions of the 1961 Act From an order passed under Sec. 35 of the 1922 Act, no appeal lies to a higher tribunal It is also seen that whereas in the case of any action taken under S. 147 (b) of the 1961 Act there is a shorter period of limitation, there is an extended period of limitation under - Section 35 (1) of the 1922 Act which authorises the income Tax Officer to rectify any mistake apparent from the record within four years from the date of the assessment order As already mentioned, the period of four years from the end of the assessment year had elapsed by the time the notice was issued to the assessee, but the period of four years from the date of the assessment order had not elapsed. ( 3 ) RELYING upon the decision of the Supreme Court in Suraj Mall Mohta and Co. v. Visvanatha Sastri, 26 ITR 1 SC, it was contended by Sri K. Srinivasan that the proceedings taken u/s. 35 of the 1922 Act had to be struck down since they suffered from the same infirmities which were pointed out in that case by the Supreme Court while dealing with an action taken under sec. v. Visvanatha Sastri, 26 ITR 1 SC, it was contended by Sri K. Srinivasan that the proceedings taken u/s. 35 of the 1922 Act had to be struck down since they suffered from the same infirmities which were pointed out in that case by the Supreme Court while dealing with an action taken under sec. 5 of the Taxation on income (Investigation Commission) Act, 1947 in the case the assset against whom action was taken under S. 5 of the said Act contended before the Supreme Court that in view of S. 34 of the 1922 Act (which was similar to S. 147 of 1961 Act) which was also applicable to his case the impugned action was liable to be struck down under art 14 of the Constitution The Supreme Court upheld the said contention by pointing out that S 34 of the 1922 Act was also applicable to the case of the assessee before it and that by having recourse to Sec 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 u/s 34 of 1922 Act, and also the defence that the action taken thereunder was barred by time, which was available under S 34 (3) of the 1922 Act The principle enunciated by the Supreme Court in that case was that when two provisions of law were applicable to a given case and of them one was more onerous than the other, in the absence of any guidance as to which of the two provisions should be resorted to in a given case, any action taken under the provision which was more onerous was liable to be struck down as being violatlve of Art 14 of the Constitution The same principle is reiterated by the Supreme Court in Anandji Haridas Co (P) Ltd. v. Kushare, 21 ITR 326. In that case the Supreme Court was concerned with Ss. 11 (4) (a) and 11a of C P and Berar Sales Tax Act, both of which permitted action to be taken against an assesses under that Act when it was discovered that certain turnover had escaped assessment In that case the Supreme Court was of the opinion that both Ss 11 and 11a were applicable to the case of the Assessee. But it Held that no action could be taken against the asseesee under S 11 which did not prescribe any period of limitation in view of the fact that under S. 11a action could only be taken within three calendar years from tha expiry of the assessment year. In that connection the Supreme Court observed as follows :"from the above conclusions it follows that the appellants' case falls both u Ss. 11 (4) (a) and 11a (1 ). Therefore, it was open to the assessing authority to proceed against them under any one of those two sections but as they wore proceeded against u/s 11 (4) (a) they cannot have the benefit of the period of limitation prescribed u/s 11a (1) Hence, it must be held that the present case falls within the rule laid down by this Court in Suraj Mall Mohta and Co. v Visvanatha Sastry (26 itr 1) On the facts found it follows that S. 11 (4) (a) has become a discriminatory provision in view of S. 11a (3) Hence the same is liable to be struck down under Art 14. Rut for the inclusion of sub-sec (3) in S 11a, there would have been no discrimination between those dealt with under S. 11 (4) (a) and those under S 11a (1) The period of limitation prescribed in S 11ah) would have attracted itself to proceedings under Sec. 11 (4) (a) as held by this Court in ghanshyamdas's case (14 STC. 976 ). " ( 4 ) IN view of the pronouncement of the Supreme Court to the two cases referred to above, it has to be held in this case that action taken against the petitioner under S. 35 of the 1922 Act is discriminatory. The impugned order, is, therefore, set aside. The petition is accordingly allowed No costs. --- *** --- .