KAPADIA,J. Heard learned counsel on both sides.

Leave granted.

The short question which arises in the facts and circumstances of these appeals is: whether it was open to the Commissioner of Income Tax to rectify its own order under Section 154 of the Income Tax Act, 1961, on the basis of the judgement of this Court later judgement in the case of Sahney Steel and Press Works Limited Ors.

vs Commissioner of Income Tax, reported in 1997 228 T.R.253? In short, in these appeals, we are concerned with the scope of Section 154 of the Act.

The appellant is engaged in the business of manufacture of Potassium Chlorates.

Its factory is located in the Union Territory of Pondicherry.

The 2/- - 2 - appellant received power subsidy for two years, which it initially offered as revenue receipt in its Return of Income.

In the petitions filed under Section 264 of the Income Tax Act, 1961 for short, the Act, the assessee pleaded that the subsidy amount was a capital receipt, hence not liable to be taxed, and, accordingly, it sought revision of the assessment orders for Assessment Years 1993-1994 and 1994-1995.

In the revision petitions, appellant had pleaded that the subsidy amount was a capital receipt and, for that purpose, it relied upon the judgement of this Court in the case of Commissioner of Income Tax vs P.J. Chemicals Limited, reported in 1994 210 I.T.R.830.

The revision petitions filed by the appellant under Section 264 of the Act stood allowed by the Commissioner of Income Tax by order dated April 30, 1997.

Subsequent to the said order, on 19th September, 1997, this Court in the case of Sahney Steel and Press Works Limited (supra) held that incentive subsidy admissible to Sahney Steel and Press Works Limited was a revenue receipt and, hence, it was liable to be taxed under Section 28 of the Act.

This decision was based on a detailed examination of the Subsidy Scheme formulated by the Government of Andhra Pradesh.

It stated that incentives would not be available unless and until production had commenced.

In that matter, this Court found that incentives were given by refund of sales tax and by subsidy on power consumed for production.

In short, on the facts and circumstances of that case, this 3/- - 3 - Court came to the conclusion that incentives were production incentives in the sense that the assessee was entitled to incentives only after entering into production.

It was also clarified that the Scheme was not to make any payment directly or indirectly for setting up the industries.

Following the judgement of this Court in the case of Sahney Steel and Press Works Limited (supra), delivered on 19th September, 1997, the Commissioner of Income Tax passed an order of rectification dated 30th March, 1998.

The only ground on which rectification was sought to be made by the Commissioner of Income Tax was that Power Tariff Subsidy given to the appellant herein was admissible only after commencement of production.

Consequently, according to the Commissioner of Income Tax, Power Tariff Subsidy constituted operational subsidies, they were not capital subsidies and, in the circumstances, applying the ratio of the judgement of this Court in the case of Sahney Steel and Press Works Limited (supra), the Commissioner of Income Tax sought to rectify its earlier order dated 30th April, 1997, by invoking Section 154 of the Act.

Aggrieved by the said order, the appellant herein filed writ petitions before the Madras High Court, which took the view that, in view of the subsequent decision of this Court in the case of Sahney Steel and Press Works Limited (supra), the Department was entitled to invoke Section 154 of the Act and that the Commissioner was right in treating the receipt of subsidies as a 4/- - 4 - revenue receipt.

This decision of the learned Single Judge has been affirmed by the Division Bench of the Madras High Court.

Hence, these appeals by special leave.

At the outset, we may state that, in these appeals, we are concerned with Assessment Years 1993-1994 and 1994- 1995.

The short point involved in these appeals is, whether there existed a rectifiable mistake enabling the Department to invoke Section 154 of the Act? If one examines the Scheme of the Income Tax Act, as it stood at the material time, one finds a clear dichotomy between Section 154 and Section 147 of the Act.

Section 154 deals with rectification of mistake.

Section 154(1), inter alia, states that, with a view to rectify any mistake apparent from the record, an Income Tax Authority may amend any order passed by it under the provisions of the Act, whereas Section 147, inter alia, states that if the Assessing Officer has reason to believe that any income charged to tax has escaped assessment for any assessment year, he may, subject to the provisions of Sections 148 to 153, assess or re-assess such income which has escaped assessment and which comes to the notice of the Assessing Officer subsequently in the course of proceedings under the said Section.

In the present case, the Department did not invoke Section 147 of the Act even when the matter was within the time limit prescribed.

Be that as it may, in these appeals, we are concerned with the meaning of the words rectifiable mistake.

5/- - 5 - On the facts of the present case, we are of the view that the present case involves change of opinion.

In this connection, it must be noted that Government grants different types of subsidies to the entrepreneurs.

The subsidy in Sahney Steel and Press Works Limited (supra) was an incentive subsidy linked to production.

In fact, in Sahney Steel and Press Works Limited (supra) at page 257, this Court categorically stated that the Scheme in hand was an incentive Scheme and it was not a Scheme for setting up the industries.

In the said case, the salient features of the Scheme were examined and it was noticed that the Scheme formulated by the Government of Andhra Pradesh was admissible only after the commencement of production.

In Income Tax matters, one has to examine the nature of the item in question, which would depend on the facts of each case.

In the present case, we are concerned with power subsidy whereas in the case of Commissioner of Income Tax vs Ponni Sugars and Chemicals Limited, reported in 2008 306 I.T.R.392, the subsidy given by the Government was for re-paying loans.

Therefore, in each case, one as to examine the nature of subsidy.

This exercise cannot be undertaken under Section 154 of the Act.

There is one more reason why Section 154 in the present case was not invokable by the Department.

Originally, the Commissioner of Income Tax, while passing orders under Section 264 of the Act on 30th April, 1997, had taken the view that the subsidy in question was a capital receipt not taxable under the Act.

After the 6/- - 6 - judgement of this Court in Sahney Steel and Press Works Limited (supra), the Commissioner of Income Tax has taken the view that the subsidy in question was a revenue receipt.

Therefore, in our view, the present case is a classic illustration of change of opinion.

We may now deal with the judgement of the Calcutta High Court in the case of Jiyajeerao Cotton Mills Limited vs Income Tax Officer, Calcutta Ors., reported in 1981 130 I.T.R. 710.

In that case, the appellant- assessee derived profits from three industries, one of which qualified for special rebate under Part-I of Schedule-I to the Finance Act, 1965, for the Assessment Year 1966-1967.

In granting this special rebate, the Income Tax Officer computed the profits attributable to that industry without deducting development rebate granted to the appellant.

The Income Tax Officer sought to rectify the mistake under Section 154 of the Act by re- computing the profits by deducting the development rebate.

The appellant filed a writ petition for setting aside the notice of rectification.

It was held by the Calcutta High Court that since there was conflict of opinion on computation of profits of priority industry for granting tax relief which conflict was resolved by the Supreme Court later on for the subsequent Assessment Year 1967- 1968, such subsequent decision of the Supreme Court did not obliterate the conflict of opinion prior to it.

It was held that, under Section 154 of the Act, rectification was not permissible on debatable issue.

7/- - 7 - In Kil Kotagiri Tea and Coffee Estates Company Limited vs Income Tax Appellate Tribunal Ors., reported in 1988 174 I.T.R.579, the facts were as follows: the assessee claimed interest on advance tax paid by it in excess but beyond the due dates.

The Income Tax Officer disallowed the claim of the assessee.

The Commissioner of Income Tax upheld the claim of the assessee.

Following the decision of a learned Single Judge of the Kerala High Court in A. Sethumadhavan vs Commissioner of Income Tax 1980 122 I.T.R.587, the Tribunal held that belated payments were not to be taken into account as advance tax for the purpose of Section 214 of the Income Tax Act, and, therefore, interest was not admissible for such belated payments.

However, subsequently, a Division Bench of the same High Court in Santha section Shenoy vs Union of India 1982 135 I.T.R.39, reversed the decision of the learned Single Judge in A. Sethumadhavan (supra) and held that payment of tax made within the financial year, though not within specified dates, should be treated as advance tax and, consequently, the assessee was entitled to interest on excess tax paid.

The assessee filed an application under Section 154 of the Act for rectification of the order of the Tribunal in view of the later decision in Santha section Shenoy (supra).

On the facts of that case, the Kerala High Court came to the conclusion that the rectification contemplated under Section 154 must be a rectifiable mistake which is a mistake in the light of the law in force at the time when the order sought to be 8/- - 8 - rectified was passed.

The Kerala High Court also examined the judgement of the Calcutta High Court in Jiyajeerao Cotton Mills Limited (supra) and held that the said decision was distinguishable.

The High Court laid down a principle of law, which was applicable across the board, namely, payment of advance tax made within the financial year, though not within the specified dates, should be treated as advance tax and, therefore, the assessee was entitled to interest on excess tax paid.

The judgement in Kil Kotagiri Tea and Coffee Estates Company Limited (supra) is not applicable to the facts of the present case, as stated above.

Sahney Steel and Press Works Limited Ors.

(supra) was a case which dealt with production subsidy, Ponni Sugars and Chemicals Limited (supra) dealt with subsidy linked to loan re-payment whereas the present case deals with a subsidy for setting up an industry in the backward area.

Therefore, in each case, one has to examine the nature of the subsidy.

The judgement of this Court in Sahney Steel and Press Works Limited Ors.

(supra) was on its own facts so also, the judgement of this Court in Ponni Sugars and Chemicals Limited (supra).

The nature of the subsidies in each of the three cases is separate and distinct.

There is no straight-jacket principle of distinguishing a capital receipt from a revenue receipt.

It depends upon the circumstances of each case.

As stated above, in Sahney Steel and Press Works Limited Ors.

(supra), this Court has observed that the production incentive scheme is 9/- - 9 - different from the Scheme giving subsidy for setting up industries in backward areas.

In the circumstances, the present case is an example of change of opinion.

Therefore, the Department has erred in invoking Section 154 of the Act.

Before concluding, we may state that in Deva Metal Powders (P) Limited vs Commissioner, Trade Tax, Uttar Pradesh, reported in 2008 (2) S.C.C.439, a Division Bench of this Court held that a rectifiable mistake must exist and the same must be apparent from the record.

It must be a patent mistake, which is obvious and whose discovery is not dependant on elaborate arguments.

To the same effect is the judgement of this Court in the case of Commissioner of Central Excise, Calcutta vs A.S.C.U. Limited 2003 151 E.L.T. 481, wherein it has been held that a rectifiable mistake is a mistake which is obvious and not something which has to be established by a long drawn process of reasoning or where two opinions are possible.

Decision on debatable point of law cannot be treated as mistake apparent from the record.

For the afore-stated reasons, appellant-assessee succeeds, impugned judgement is set aside and, consequently, the appeals are allowed with no order as to costs.

J. H. KAPADIA J. L. DATTU J. DEEPAK VERMA New Delhi, November 19, 2009.

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K. Basu, J. In this application the petitioner challenges three notices all dated the 17th October, 1978, and issued under Section 148 of the I.T. Act, 1961 (hereinafter referred to as the Act).

The notices are in respect of the assessment years 1970-71, 1971-72 and 1972-73, respectively.

Although the main challenge is that the condition precedent for the applicability of Section 148 was not satisfied in the present case and it was pressed very strenuously and a large number of authorities were cited before me, the other point as to the limitation was also urged equally strenuously.

Before I deal with the main challenge, I shall deal with the question of limitation.

On the question of limitation, it was submitted that Section 153 of the Act provides the time-limit for the completion of assessments and reassessments.

The issue of limitation, it was contended, is to be considered in the light of Section 153(2) of the Act.

It was pointed out that separate time-limits for the completion of an assessment were provided for under Section 147(a) and under Section 147(b) of the Act.

The submission on the question of limitation was on the basis that the proceedings, which were impugned in the present case, fell under Section 147(b) of the Act.

This is because, although the point was not given up by Mr. Suhas Sen, appearing for the Revenue, he did not seriously try to justify the issue of the impugned notices under Section 147(a) of the Act.

In other words, Mr. Sens main argument was an attempt to justify the issue of the notices under Section 147(b) of the Act, an argument with which I shall deal later on.

On the question the following points were urged on both sides.

What is the period of limitation for the completion of reassessment proceedings initiated under Section 147(b)/148 of the Act ? Whether the reassessment proceedings under Section 147(b) were already barred by limitation as provided in Section 153(2)(b) of the Act, on or before 17th October, 1978, the date when the ITO issued notices under Section 142(1) of the Act? Where the reassessment proceedings cannot be completed because of the bar of limitation under Section 153(2)(b) of the Act, should this court go into the question of limitation or leave it to be considered by the ITO ? Has Section 153(2A)/153(3) any application in this case? Is there any ground or prayer regarding limitation ? With regard to the points (a) and (b) noted above, it was pointed out that no order for reassessment under Section 147(b) of the Act could be made after the expiry of-- four years from the end of the relevant assessment year, or (ii) one year from the date of service of the notices under Section 148, whichever is later.

It was pointed out that in this case the impugned notices were admittedly served on or about the 22nd July, 1974.

These notices relate to three assessment years, as I have already indicated, viz., 1970-71, 1971-72, 1972-73.

Therefore, the four-year period expired on 31st March, 1975, 31st March, 1976, and 31st March, 1977, respectively.

If the one-year period is to be counted from the date of service of the notice, that expired on 21st July, 1975.

As such, it was pointed out 31st March, 1977, is in any event the last date for the completion of reassessment proceedings for the relevant years and any reassessment made after that date will be barred by limitation in view of Section 153(2)(b) of the Act.

In the present case, the notice under Section 142(1) of the Act, asking for production of books of account and documents was issued only on 17th October, 1978, which shows that the reassessment proceedings under Section 147(b) of the Act had not been completed till then.

Therefore, the reassessment proceedings in the present case is clearly barred by limitation.

Therefore, it was submitted that the continuation of any further proceeding pursuant to the impugned notices was clearly illegal, unwarranted, without jurisdiction and void ab initio.

Coming to the question, whether this court should go into the aspect of limitation in writ proceedings at this stage, reference was made to the judgment of a Division Bench of this court in the case of CIT v. Punam Chand Banthia 1978 112 ITR 727.

In that case a notice issued under Section 148 of the Act and dated the 25th January, 1967, was challenged.

The assessment was reopened for the assessment year 1962-63.

The notice under Section 148 was issued on 25th January, 1967, which was within a period of four years from the assessment year 1962-63.

As such, it was within the time prescribed under Section 149 of the Act.

It seems that in the trial court the Department tried to justify the reopening both under Section 147(a) as also under Section 147(b) of the Act.

The notice was quashed by the trial court.

On appeal, the Division Bench appears to have found that the notice in that case was issued under Section 147(b) of the Act.

This is clear from an observation at p. 730 of the report, which is as follows : For the reasons aforesaid it appears to us that the notice was issued under Section 148 on the basis of the information received as mentioned hereinbefore under Section 147(1)(b) of the Act.

At pp.

730-31 the following passage occurs : In the instant case a notice was served on or about 25th January, 1967, under Section 148 of the Act.

Thereafter, the Income-tax Officer served another notice bearing G.I. Number IV(1)/719-B E dated February 1, 1971, under Section 139 of the Act requiring the respondent to produce or cause to be produced at his office at Number 40, Strand Road, Calcutta 1, on 9th February, 1971, at 11.30 A.M. accounts and documents mentioned on the reverse of the notice, viz., books of account, bank pass book and other related papers.

This notice was served about 4 years after the service of the notice under Section 148 of the Act and no assessment or reassessment or recomputation could be made under Section 147 where the assessment, reassessment or recomputation is to be made under clause (b) of that section after the expiry of one year from the date of service of the notice under Section 148.

It appears that this has clearly been the case in the instant matter.

For the reasons aforesaid the appellants could not proceed with the reassessment as they purported to do by virtue of the notice dated 1st February, 1971.

For the reasons stated hereinabove, we are of the view that there is no merit in the appeal.

The appeal must fail and is hereby dismissed.

On the strength of the above decision, it was contended by Mr. Sukumar Bhattacharyya and Mr. Poddar, who followed him, that in the above case the Division Bench went into the question of limitation in a writ application and on the finding that the assessment proceedings proposed to be undertaken pursuant to a notice under Section 148 of the Act was barred by limitation, upheld the finding of the trial court and dismissed the appeal.

Lastly, it was pointed out that specific grounds have been taken in the petition with regard to the point of limitation and grounds (A) and (C) were referred to in this connection.

There are also specific prayers for certain directions with regard to the question of limitation.

Mr. Suhas Sen, appearing for the Revenue and dealing with this aspect of limitation, contended, in the first place, that the scope of writ jurisdiction in revenue matters is very limited.

There is an adequate alternative remedy provided by the Act itself.

Moreover, the Supreme Court has repeatedly cautioned the courts against exercising the writ jurisdiction in matters where the court has to make assumptions of facts which remain to be investigated by the Revenue authorities.

Shivram Poddar v. ITO .

It was contended that the question whether the reassessment proceedings initiated against a person are barred by limitation can and ought to be raised before the ITO.

It cannot be raised in writ proceedings.

My attention was drawn to a decision of the Supreme Court in the case of Lalji Haridas v. ITO 1961 43 ITR 387.

In that case, it was held that the question whether the assessment proceedings initiated against a person are barred by limitation under Section 34(3) of the Indian I.T. Act, 1922 (which corresponds to Section 153 of the Act), can and ought to be raised by the assessee before the ITO.

That is not a point which can be legitimately agitated in writ proceedings.

My attention was also drawn to another decision of the Supreme Court in the case of Lalji Haridas v. R. H. Bhatt 1965 55 ITR 415.

At p. 418 the following passage occurs.

Mr. Pathak for the appellant attempted to argue that the notice issued against the appellant is, on the face of it, invalid, because it is barred by time.

We did not allow Mr. Pathak to develop this point, because we took the view that a plea of this kind must ordinarily be taken before respondent Number 1 himself.

The jurisdiction conferred on the High Court under article 226 is not intended to supersede the jurisdiction and authority of the Income-tax Officers to deal with the merits of all the contentions that the assessees may raise before them, and so it would be entirely inappropriate to permit an assessee to move the High Court under article 226 and contend that a notice issued against him is barred by time.

That is a matter which the income-tax authorities must consider on the merits in the light of the relevant evidence.

With regard to the decision of the Supreme Court in the case of section section Gadgil v. Lal and Company , where the Supreme Court affirmed the decision of the Bombay High Court and held that the notice under Section 34 of the old Act was barred by limitation, it was pointed out that the decision is clearly distinguishable from the present case.

It was pointed out that jurisdiction under Section 34 of the old Act could only be assumed by issuing a valid notice under Section 34 after complying with all the conditions precedent provided under the Act.

One of the conditions precedent is that the notice must be issued within the time-limit provided by the statute.

In that case, the Supreme Court held that the ITO could not commence proceedings under Section 34 of the old Act oh the ground that the issue of the notice itself was beyond the prescribed time-limit.

It was submitted that the fundamental distinction between Gadgils case and the present case is that the initial assumption of jurisdiction by issuing the notice under the Act is not invalid because the notices were admittedly issued within the time prescribed.

What the petitioner in this case is challenging is not the assumption of jurisdiction but the exercise of jurisdiction on the ground that the conclusion of the assessment proceeding is barred by limitation.

This question, it was pointed out by Mr. Sen, should be left to be decided by the ITO on the strength of the two Lalji Haridas cases mentioned above.

Lastly, it was pointed out that the two decisions in Lalji Haridas v. ITO and Lalji Haridas v. R. H. Bhatt , mentioned above, are decisions of five learned judges of the Supreme Court and should prevail over the decision in Gadgils case , which is the judgment of three learned judges only.

After giving my anxious consideration to the facts of the present case and on the authorities cited before me, I have come to the conclusion that the reassessment proceedings in the instant case are clearly barred by limitation.

As already indicated, the last date for completion of the reassessment proceedings pursuant to the impugned notices expired on 31st March, 1977.

The notice dated the 17th October, 1978, cannot enlarge the period of limitation as it was issued beyond the period of four years from the last assessment year.

Irrespective of the contention of Mr. Suhas Sen whether this question should be gone into by the writ court or should be left to the ITO, the stark fact remains that all the reassessment proceedings pursuant to the impugned notices are clearly barred by limitation.

That being so, no other question really arises for consideration.

Having regard to the elaborate arguments advanced from the Bar, I shall very briefly record the contentions on merits and refer to the authorities cited in support thereof.

With regard to the merits of the question of reopening of the assessment before I deal with them it will be useful to set out the recorded reasons for the relevant assessment years, namely, 1970-71, 1971-72 and 1972-73, which were, by consent of parties, tendered and forms part of the records of this case.

The recorded reasons by the ITO dated the 28th June, 1974, are as follows: The assessee started construction of his house properties at 106/E, Amherst Street, Calcutta-9, in April, 1968, and completed the same in July, 1971.

This is a four-storeyed house property measuring about 950 sq.

in each floor.

The assessee claimed that the total cost of construction was only Rs. 61,000, vide O s (70-71) dated Aprils, 1973.

This sum was explained by him to be gift received from his father and grandmother.

No valuation report estimating cost of construction was filed nor any enquiry has been made from the ITO concerned who made the assessment up to 1972-73 assessment year, accepting the assessees cost of construction.

To the best of my knowledge and estimate the total cost of construction incurred by the assessee is not less than Rs. 1 lakh only, in view of the total covered space and period of construction and with reference to the valuation report for wealth-tax purpose filed by the assessee.

Secondly, all the gifts of Rs. 61,000 were not withdrawn from his bank account (which were initially deposited in the bank fixed deposit account).

As such I have reason to believe that the assessee has unexplained investment to the extent of Rs. 60,000 (approximate), representing his income from undisclosed sources which escaped assessment for his failure to file the true return of income.

Since the major construction was made during 1969-70 to 1971-72, this year I considered that the escaped income, Rs. 60,000, may be reassessed under Section 148/147(a) equally in three assessment years, i. e., 1970-71 and 1971-72, 1972-73.

So issue notice u section 148 for 1970-71, 1971-72 and 1972-73 assessment years at once.

Inspector to enquire about the cost of construction only.

Mr. Bhattacharyya, appearing for the petitioner, relied on a number of decisions in support of his contention that this reopening could be justified only under Section 147(b) and not under Section 147(a) of the Act.

As I have already indicated Mr. Suhas Sen for the Revenue, without conceding the point, had only sought to justify the notice under Section 147(b) of the Act.

I shall merely mention the cases on this point and not deal with them.

Mr. Bhattacharyya relied on a decision of the Patna High Court in the case of Durga Sharan Udho Prasad v. CIT 1976 103 ITR 270.

He also referred to the judgment of a Division Bench of this court in the case of ITO v. Selected Dalurband Coal Company P. Limited .

He also referred to the case of ITO v. Madnani Engineering Works Limited , the case of Gemini Leather Stores v. ITO and the case of Ahmedabad Cotton Mfg.

Company Limited v. Union of India 1914 95 ITR 639 (Guj).

Since Mr. Sen for the Revenue really sought to justify the reopening of the assessment under Section 147(b) of the Act, I refrain from dealing with these authorities, mentioned above, in any detail.

Mr. Bhattacharyya, for the assessee, sought to contend that this is merely a change of opinion on the part of the ITO and no fresh information.

In support of this proposition Mr. Bhattacharyya relied on a decision in the case of Jamna Lal Kabra v. ITO 1968 69 ITR 461 (All).

Reference was also made to a decision of the Patna High Court on the question of reasons recorded in the case of C. M. Rajgharia v. ITO 1975 98 ITR 486 (Pat).

I do not see how this case is of any relevance to the present case.

On the question of what is information within the meaning of Section 147(b) of the Act, reference was also made to the decisions of this court in Ballarpur Paper and Straw Board Mills Limited v. CIT and in the case of Grindlays Bank Limited v. ITO .

On the question of valuation report my attention was drawn to a decision of this court in the case of Murarka Paints and Varnish Works Limited v. ITO 1978 114 ITR 480.

Mr. Suhas Sen, appearing for the Revenue, placed very strong reliance on the decision of the Supreme Court in the case of Kalyanji Mavji Company v. CIT 1976 102 ITR 287.

In that case it was held that Section 34(1)(b) of the old Act, which corresponds to Section 147(b) of the Act, would apply to the following categories of cases (headnote): Where the information is as to the true and correct state of the law derived from relevant judicial decisions Where in the original assessment the income liable to tax has escaped assessment due to oversight, inadvertence or a mistake committed by the Income-tax Officer Where the information is derived from an external source of any kind : such external source would include discovery of new and important matters or knowledge of fresh facts which were not present at the time of original assessment and Where the information may be obtained even from the record of the original assessment from an investigation of the materials on the record or the facts disclosed thereby or from other enquiry or research into facts or law.

Mr. Sen sought to rely upon another decision of the Supreme Court in the case of R. K. Malhotra, ITO v. Kasturbhai Lalbhai 1977 109 ITR 537.

In that case, it was held that the audit department was the proper machinery to scrutinise the assessments of ITOs and point out the errors, if any, in law, and that the intimation received by the ITO constituted information within the meaning of Section 147(b) in consequence of which the ITO could reopen the assessment.

On the strength of these authorities of the Supreme Court, Mr. Sen sought to contend that a mistake in the original assessment could be an information within the meaning of Section 147(b) of the Act.

Mr. Poddar, who followed Mr. Bhattacharyya in reply, drew my attention to the recent decision of the Supreme Court, Indian and Eastern Newspaper Society v. CIT 1979 119 ITR 996.

As will appear from page 1007 of the report, the Supreme Court, in the above case, held that its earlier decision in the case of R. K. Malhotra v. Kasturbhai Lalbhai and the decision in Kalyanji Mavji Company v. CIT , were wrongly decided.

Mr. Bhattacharyya drew my attention to para.

1004 of the report which is in the following terms: In the present case, an internal audit party of the income-tax department expressed the view that the receipts from the occupation of the conference hall and rooms did not attract Section 10 of the Act and that the assessment should have been made under Section 9.

While Sections 9 and 10 can be described as law, the opinion of the audit party in regard to their application is not law.

It is not a declaration by a body authorised to declare the law.

That part alone of the note of an audit party which mentions the law which escaped the notice of the ITO constitutes information within the meaning of Section 147(b) the part which embodies the opinon of the audit party in regard to the application or interpretation of the law cannot be taken into account by the ITO.

In every case, the ITO must determine for himself what is the effect and consequence of the law mentioned in the audit note and whether in consequence of the law which has now come to his notice he can reasonably believe that income has escaped assessment.

The basis of his belief must be the law of which he has now become aware.

The opinion rendered by the audit party in regard to the law cannot, for the purpose of such belief, add to or colour the significance of such law.

In short, the true evaluation of the law in its bearing on the assessment must be made directly and solely by the ITO.

In my view, this case is a clear authority for the proposition that an interpretation of the law by an audit party cannot be an information within the meaning of Section 147(b) of the Act.

This case has expressly held that the two earlier decisions in the case of Kalyanji Mavji Company v. CIT and the case of R. K. Malhotra v. Kasturbhai Lalbhai , were wrongly decided.

Mr. Suhas Sen for the Revenue submitted that these decisions of the Supreme Court did not stand in the way of his client because, in the instant case, the information on which the ITO has sought to act was not from any internal source but from an outside source, viz., the records of the wealth-tax proceedings of the petitioner.

I am merely recording these contentions because, as I have already indicated, in view of my finding on the question of limitation, I do not feel it necessary to make any pronouncement on this aspect of the matter.

Before I conclude, I may record that a large number of other authorities were cited mainly on behalf of the petitioner, which I do not consider it necessary to deal with.

In the result, this application succeeds and the rule must be made absolute.

There will be a writ in the nature of mandamus directing the respondents to forthwith recall, cancel and withdraw the three impugned notices dated July 12, 1974, for the assessment years 1970-71, 1971-72 and 1972-73, respectively, and to forbear from giving effect thereto in any manner whatsoever.

There will be no order as to costs.

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This Petition under Article 226 of the Constitution of India, challenges the notice dated 26th March 2003 issued under Section 148 of the Income Tax Act, 1961 (the Act).

The impugned notice dated 26 th March 2003 seeks to re-open the assessment for the Assessment Year 1993-94.

2 On 30th December 1993, the Petitioner have filed its Return of Income under Section 139(1) of the Act for the Assessment Year 1993-94, declaring total income of Rs.4.64 lakhs.

This was subsequently revised to Rs.8 lakhs in a Revised Return of Income filed under Section 139(5) of the Act on 13th May, 1994.

In October 1995, the Assessing Officer completed assessment proceedings for the Assessment Year 1993-94.

R.JOSHI 1 of 15 ::: Uploaded on - 21/08/2014 ::: Downloaded on - 02/08/2016 13:33:45 ::: wp-3314-2004.sxw During assessment proceeding, specific query was made by the Assessing Officer with regard to the depreciation claimed by the Petitioner.

The Petitioner filed details in respect of depreciation claimed.

The Assessing Officer in the Assessment Order passed in October 1995 allowed the depreciation only to the extent of 25 in respect of three items where 100 depreciation was claimed.

Besides, other issues were also considered by the Assessing Officer and the Petitioners income was determined at Rs.10.30 lakhs.

3 On 1st August 1996, a search was conducted on the Petitioners premises under Section 132 of the Act.

Consequent to a search, a notice dated 7th February 1997 was issued under Section 158BC of the Act, directing the Petitioner to file return of income for the block period 1st April 1986 to 1st August 1996, declaring its undisclosed income.

The Petitioner duly complied with the directions and on 30 th September 1997, the Assessing Officer passed an order for the block period from 1 st April, 1986 to 1st August, 1996 i.e. Assessment Year 1987-88 to 1997-98.

In the order dated 30th September 1997, in respect of Block Assessments additions were made by the Assessing Officer on account of excess rate of depreciation claimed by the Petitioner.

4 Being aggrieved by the order dated 30th September, 1997, the Petitioner preferred an appeal to the Income Tax Appellate Tribunal (Tribunal).

On 25th October 2002, the Tribunal allowed the Petitioners appeal for the block period 1st April,1986 to 1st August, 1996 (Assessment Year 1987-88 to 1997-98) and deleted the entire addition made on dis- allowance of depreciation by the Assessing Officer.

R.JOSHI 2 of 15 ::: Uploaded on - 21/08/2014 ::: Downloaded on - 02/08/2016 13:33:45 ::: wp-3314-2004.sxw 5 Consequent to the above order dated 25 th October, 2002, the Assessing Officer issued impugned notice dated 26th March, 2003 seeking to re-open the assessment for the Assessment Year 1993-94.

6 In support of the impugned notice dated 26 th March, 2003, the Assessing Officer furnished to the Petitioner, the following recorded reasons :- M section SHREE KRISHNA PETRO YARNS LTD.

ASSESSMENT YEAR 1993-94 Date: 26.03.03.

A search seizure action u s 132 of the I. T. Act, 1961 was conducted on M section Shree Krishna Polyster Limited 01.08.1996.

The assessee had filed nil return for the block period in response to notice u section 158BC.

The block assessment in this case was completed on 30.09.1997 estimating the total undisclosed income of Rs.38,65,986/- for the block period in A. Y. 1993-94.

Being aggrieved, the assessee went in first appeal before the Hon.

ITAT against the above assessment order.

The Hon. ITAT has given relief to the assessee relying on various judicial pronouncements viz. 1 CIT v section Vinod D. Ghodawat (163 CTR 432) (Bom).

2 CIT v section Dr. M.K.E. Memon (112 Taxmen 96) (Bom).

3 DCIT v section Shaw Wallace Company (248 ITR 81) (Cal.).

4 CIT v section Rajendra Prasad Gupta (248 ITR 350)(Raj.).

5 Bhagwat Prasad Kedia v section CIT (248 ITR 562) (Cal.).

6 CIT v section Ravi Kant Jain (250 ITR 141) (Del.).

7 Vrsihali Hotels Pvt Limitedv section ACIT (66 TTJ 693) (ITAT, Pune).

8 Ravi Prakash Agarwal v section ACIT (67 TTJ 234) (ITAT, Delhi).

The Hon. ITAT has also given a clear cut finding that: the rate at which depreciation is permissible on a particular asset is a matter to be considered in the regular assessment.

Even if the assessee has claimed higher depreciation than what is permissible, the same can not be said to be undisclosed income for the purpose of the block assessment.

R.JOSHI 3 of 15 ::: Uploaded on - 21/08/2014 ::: Downloaded on - 02/08/2016 13:33:45 ::: wp-3314-2004.sxw Keeping in view the provisions of section 153(3)(ii) Explanation 2, it is proposed to re-open the assessment of the assessee for A. Y. 1993-94 u section 148 of the I. T. Act, 1961 as income of Rs.38,65,986/- for A. Y. 1993-94 has escaped assessment.

In this regard, a letter dated 11.03.03 has been put up requesting CIT(C)-IIIs sanction u section 151.

CIT(C)-III has accorded his approval for issuance of notice u section 148 vide letter dated 24.03.03.

Accordingly, notice u section 148 is issued.

7 The Petitioner by its letter dated 23 rd November, 2004, objected to the reasons recorded for issuing the impugned notice dated 26th March, 2003.

The primary objections to re-opening of the assessment for the Assessment Year 1993-94, were as under:- (a) the impugned notice is time barred (b) there was no failure to disclose true and complete facts necessary for assessment.

Therefore, the re-opening of assessment beyond a period of four years from the end of the Assessment order is without jurisdiction and (c) there was no reason to believe that the income chargeable to tax has escaped the assessment inasmuch as the issue of depreciation was subject matter of consideration while passing the Assessment order under Section 143(3) of the Act.

8 On 6th December 2004, the Assessing Officer by order rejected the Petitioners objections.

The order dated 6 th December 2004 held that the impugned notice dated 26th March 2006 has been correctly issued in view of the finding recorded in the order of the Tribunal dated 25 th October 2002.

R.JOSHI 4 of 15 ::: Uploaded on - 21/08/2014 ::: Downloaded on - 02/08/2016 13:33:45 ::: wp-3314-2004.sxw 9 Mr. Pardiwala, learned Senior Counsel appearing for the Petitioner in support of the Petition submits as under:- The impugned notice dated 26th March 2003 is time barred as it seeks to re-open the assessment for the Assessment Year 1993-94 under Sections 147 and 148 of the Act i.e. almost nine years from the end of the relevant assessment year.

The impugned notice is in the face of and in defiance of the period of limitation provided in Section 149 of the Act The revenue seeks to extend the period of limitation provided under Section 149 of the Act on a perverse reading of the order dated 25 th October 2002 of the Tribunal in Block proceedings that it renders a finding which is being given effect to by the impugned notice dated 26th March 2003.

It is submitted that there is no such finding in order dated 25th October 2002 of the Tribunal which extend the period of limitation by virtue of Section 150 of the Act and In any view of the matter, the impugned notice dated 26th March 2003 being beyond a period of four years from the end of the relevant Assessment Year i.e. 1993-94 had to satisfy the conditions in the first proviso to Section 147 of the Act viz. a failure on the part of the Petitioner to disclose fully and truly all material facts necessary for the assessment.

This not having been alleged in the impugned notice ( the reasons in support of the notice), it would fail to satisfy the jurisdictional requirement making the impugned notice bad in law.

10 As against the above, Mr. Suresh Kumar, learned Counsel R.JOSHI 5 of 15 ::: Uploaded on - 21/08/2014 ::: Downloaded on - 02/08/2016 13:33:45 ::: wp-3314-2004.sxw appearing for the Respondent-Revenue in support of the impugned notice dated 26th March 2003 submits as under:- The impugned notice dated 26th March 2003 is within time as it has been issued to give effect to or in consequence of a finding recorded in the order dated 25th October 2002 of the Tribunal that the claim of the depreciation cannot be considered in Block assessment proceeding but only in a regular assessment.

Thus, the period to issue notice for re-opening gets extended by a virtue of Section 150 of the Act and There was a failure on the part of the Petitioner to make true and full disclosure at the time of regular assessment proceeding leading to the Assessment order in October 1995 for the Assessment Year 1993-94.

Thus, the condition precedent to issue the impugned notice was satisfied.

In view of the above, it is submitted that the Petition be dismissed.

11 It would be convenient to reproduce the relevant Sections of the Act which arises for our consideration in the context of the facts and the submission made before us.

The relevant Sections are as under:- Income escaping assessment.

Section 147:- If the Assessing Officer has reason to believe that any income chargeable to tax has escaped assessment for any assessment year, he may, subject to the provisions of sections 148 to 153, assessee or reassess such income and also any other income chargeable to tax which has escaped assessment and which comes to his notice subsequently in the course of the proceedings under this section, or recompute the loss or the depreciation allowance or any other allowance, as the case may be, for the assessment year concerned.

R.JOSHI 6 of 15 ::: Uploaded on - 21/08/2014 ::: Downloaded on - 02/08/2016 13:33:45 ::: wp-3314-2004.sxw Provided that where an assessment under sub-section (3) of section 143 or this section has been made for the relevant assessment year, no action shall be taken under this section after the expiry of four years from the end of the relevant assessment year, unless any income chargeable to tax has escaped assessment for such assessment year by reason of the failure on the part of the assessee to make a return under Section 139 or in response to a notice issued under sub-section (1) of section 142 or section 148 or to disclose fully and truly all material facts necessary for assessment, for that assessment year.

(emphasis supplied) Issue of notice where income has escaped assessment.

Section 148 :- Before making the assessment, reassessment or recomputation under section 147 , the Assessing Officer shall serve on the assessee a notice requiring him to furnish within such period, as may be specified in the notice, a return of his income or the income of any other person in respect of which he is assessable under this Act during the previous year corresponding to the relevant assessment year, in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed and the provisions of this Act shall, so far as may be, apply accordingly as if such return were a return required to be furnished under section 139 Provided that Time limit for notice.

Section 149 (1) No notice under Section148 shall be issued for the relevant assessment year-.

(a) if four years have elapsed from the end of the relevant assessment year, unless the case falls under clause (b) (b) if four years, but not more than six years, have elapsed from the end of the relevant assessment year unless the income chargeable to tax which has escaped assessment amounts to or is likely to amount to one lakh rupees or more for that year.

(c ) R.JOSHI 7 of 15 ::: Uploaded on - 21/08/2014 ::: Downloaded on - 02/08/2016 13:33:45 ::: wp-3314-2004.sxw Provisions for cases where assessments is in pursuance of an order on appeal, etc.

Section 150:-(1) Notwithstanding anything contained in section 149, the notice under section 148 may be issued at any time for the purpose of making an assessment or reassessment or recomputation in consequence of or to give effect to any finding or direction contained in an order passed by any authority in any proceeding under this Act by way of appeal, reference or revision or by a court in any proceeding under any other law.

(2) 12 The law with regard to re-opening of assessment is fairly settled.

A re-opening of assessment can only be done if the Assessing Officer has reason to believe that income chargeable to tax has escaped assessment on the basis of some tangible material.

However, such re- opening of assessment is not in the nature of review and, therefore, such re-opening is not permissible on mere change of opinion.

Moreover, in cases where re-opening of assessment is sought to be done beyond the period of four years from the end of the relevant assessment year, an additional requirement is to be satisfied viz: failure on the part of the assessee to truly and fully disclose all material facts for assessment.

13 So far as limitation for issue of re-opening of assessment is concerned, Section 149 of the Act provides that the normal period for re- opening of assessment is four years from the end of the relevant Assessment Years.

This period is extended to six years where the income which is likely to escape the assessment is Rs.1 lakh or more and to sixteen years, if it relates to income located outside India.

Section 150 of the Act does away with the above bar of limitation, where the re-opening R.JOSHI 8 of 15 ::: Uploaded on - 21/08/2014 ::: Downloaded on - 02/08/2016 13:33:45 ::: wp-3314-2004.sxw notice under Section 148 of the Act has been issued in consequence of or to give effect to a finding or directions contained in an order passed by an Appellate Authority.

The aforesaid provisions only extend the period of limitation but otherwise there is no change in the conditions precedent to be satisfied under the Act to issue a re-opening notice under Sections 147 and 148 of the Act.

Thus, there is no change otherwise in the substantive conditions to issue a re-opening notice under Section 148 of the Act.

14 In this case, the impugned notice is issued after a period of almost nine years from the end of the relevant Assessment Years i.e. 1993- The reasons in support of the impugned notice as reproduced herein above, is the finding in the order of the Tribunal dated 25 th October 2002.

We find that the order of the Tribunal dated 25 th October 2002 was dealing with appeal for block assessment i.e. 1 st April 1986 to 1st August 1996.

The Tribunal by its order dated 25 th October 2002 while allowing the appeal of the Petitioner followed the decision of this Court in CIT v section Dr. M. K. E. Memon - to hold that the scope of the block assessment is only to assess the undisclosed income for the block period and not the total income or loss of the previous year, which exercise is to be carried out in a regular assessment under Section 143(3) of the Act.

It was pointed out that the scope of regular assessment is to ensure that there is no undue payment of tax while block assessment is only to assess the undisclosed income.

It was held that the question of rate of depreciation cannot be subject of examination in block assessment as otherwise, there would be no finality to the regular assessment already completed prior to the search.

The following observations in order dated 25 th October, 2002 of the Tribunal, being relied upon by the Revenue as findings are as R.JOSHI 9 of 15 ::: Uploaded on - 21/08/2014 ::: Downloaded on - 02/08/2016 13:33:45 ::: wp-3314-2004.sxw under:- The rate at which depreciation is permissible on a particular asset is a matter to be considered in the regular assessment.

Even if the assessee has claimed higher depreciation than what is permissible, the same cannot be said to be undisclosed income for the purpose of block assessment.

We may clarify here that we are not expressing any opinion about the rate of depreciation which is allowable on the assets under consideration.

15 At this stage, Mr. Suresh Kumar, learned Counsel appearing for the Revenue states that the revenue is relying upon the aforesaid finding alone to re-open the assessment for the Assessment Year 1993-94 by the impugned notice.

Mr. Suresh Kumar, learned Counsel appearing for the Revenue concedes that there are no directions in the order of the Tribunal dated 25th October 2002 being relied upon for the issue of impugned notice.

However, it is submitted that the aforesaid finding in the order of Tribunal dated 25 th October, 2002 entitles the Assessing Officer to issue the impugned notice.

16 Therefore, the issue for our examination is whether there is any finding in the order of the Tribunal dated 25 th October, 2002 which is being given effect to and or as consequence thereof, the impugned notice has been issued.

It is only when the answer to the above question is in the affirmative i.e. there is a finding that the issue of impugned notice would be saved from the bar of limitation by virtue of Section 150(1) of the Act.

17 The issue of what is a finding in an adjudicatory appellate order is no longer res integra.

The Supreme Court while dealing with a provision similar to Section 150 of the Act found in Section 34(3) of the R.JOSHI 10 of 15 ::: Uploaded on - 21/08/2014 ::: Downloaded on - 02/08/2016 13:33:45 ::: wp-3314-2004.sxw Income Tax Act, 1922 in ITO v section Murlidar B. Deo 52 ITR 335 has explained the meaning of finding thus:- A finding, therefore, can be only that which is necessary for the disposal of an appeal in respect of an assessment of a particular year.

The Appellate Assistant Commissioner may hold, on the evidence, that the income shown by the assessee is not the income for the relevant year and thereby exclude that income from the assessment of the year appeal.

The finding in that context is that that income does not belong to the relevant year.

He may incidentally find that the income belongs to another year, but that is not a finding necessary for the disposal of an appeal in respect of the year of assessment in question.

The aforesaid meaning to the word finding was rendered in the following contextual facts:- Income Tax Office had issued a re-opening notice, seeking to re- open assessment for the Assessment Year 1949-50.

Consequently, the Assessment Order was also passed.

In appeal, the Appellate Assistant Commissioner held that addition of interest made for the Assessment Year 1949-50 was incorrect and if at all it had to be included in the Assessment Year 1948-49.

It was consequent to the aforesaid order of the Appellate Authority that notice for re-opening were for 1948-49 on 5 th December 1957.

The assessee therefore filed a Petition under Article 226 of the Constitution of India on the ground that the notice dated 5 th December 1957 seeking to re-open the assessment for Assessment Year 1948-49 is time barred under Section 34 of the Income Tax Act, 1922.

The revenue contended that the Appellate Authority in his order for the Assessment Year 1949-50 had given a finding that the interest is chargeable to tax for Assessment Year 1948-49.

This was not accepted by the Supreme Court R.JOSHI 11 of 15 ::: Uploaded on - 21/08/2014 ::: Downloaded on - 02/08/2016 13:33:45 ::: wp-3314-2004.sxw on the basis of the meaning of finding given by it i.e. it was not necessary for the disposal of the appeal for Assessment Year 1949-50 to give a finding that the income is chargeable to tax in Assessment Year1948-49.

The Supreme Court also made the following further observations with regard to the words in consequence of or to give effect to which was in Section 34 of the Income Tax Act, 1922 and even incorporated in Section 150 of the Act as under:- Therefore, the expression finding as well as the expression direction can be given full meaning, namely, that the finding is a finding necessary for giving relief in respect of the assessment of the year in question and the direction is a direction which the appellate or revisional authority, as the case may be, is empowered to give under the sections mentioned therein.

The words in consequence of or to give effect to do not create any difficulty, for they have to be collated with, and cannot enlarge, the scope of the finding or direction under the proviso.

If the scope is limited as aforesaid, the said words also must be related to the scope of the findings and directions.

18 Our attention was also invited to the decision of this Court in Lotus Investments Limited, v section G. Y. Wagh, Assistant Commissioner of Income Tax and Others - 2007 288 ITR 459.

In this case, the Revenue had issued notice on 30th March 2006, seeking to re-open assessment for the Assessment Year 1988-89 to 1999-2000 i.e. beyond a period of six years from the end of the relevant Assessment Year.

So far as the Assessment Years 1988-89 to 1999-2000 is concerned, the revenue relied upon the order of the CIT(A) dated 24 th December 2004 wherein it was observed as under:- The Assessing Officer is free to look into and consider these disallowances under section 148 of the Income-tax Act, in the relevant assessment years in terms of section 150(1) read with Explanation 2 of section 153 in respect of deletion of both amounts made in this order.

R.JOSHI 12 of 15 ::: Uploaded on - 21/08/2014 ::: Downloaded on - 02/08/2016 13:33:45 ::: wp-3314-2004.sxw The Assessing Officer relied upon the aforesaid observations to support the notices issued on the ground that there were finding directions given by the CIT(A).

This Court followed the Apex Courts decision in Murlidhar Bhagwan Das (supra) to hold that there was no finding given in the CIT(A) order.

So far as directions were concerned, this Court followed the decision in Rajinder Nath v section CIT 120 ITR 14 to hold that the above observations were not directions to issue a notice but merely allowed the Assessing Officer to take a look into the issue and decide.

This is different from directions.

In view of the above, this Court held that the notice for re-opening are beyond the period provided under Section 149 of the Act and Section 150 of the Act would have no application as the CIT(A) had not given any finding and or directions to re-open the assessment.

In any case, in the present case the revenue has pegged its case only on a finding in the order of the Tribunal dated 25October 2002 for the issue of the impugned notice.

We are not concerned with the meaning and scope of the word directions in the present case.

19 In view of the above and particularly the law laid down by the Apex Court in Murlidhar Bhagwan Das (supra), it is very clear that the Tribunal in its order dated 25 th October 2002 was concerned with an appeal from orders passed in block Assessment and held that the ambit scope for assessment for the block period under Chapter XIVB is only to assess the undisclosed income for the block period and not for the total income or loss suffered in the previous year which is subject matter of regular assessment.

The only finding of the Tribunal in its order dated 25 th October 2002 is that the extent of claim for depreciation made by the R.JOSHI 13 of 15 ::: Uploaded on - 21/08/2014 ::: Downloaded on - 02/08/2016 13:33:45 ::: wp-3314-2004.sxw assessee petitioner would not be a subject matter of enquiry in the block assessments.

This is for the reason that the claim for higher depreciation cannot be said to be undisclosed income for the purpose of block assessment.

The Tribunal had in its order dated 25 th October 2002 while dealing with order passed in a block assessment had no occasion to examine whether or not the depreciation as claimed was permissible.

It may also be pointed out that the Tribunal in its order dated 25 th October 2002 has recorded a finding of fact that no material was found during the course of search to establish that the claim for depreciation made was incorrect.

Therefore, we are of the view that there is no finding given by the Tribunal in the order dated 25th October 2002 which would enable the Assessing Officer to extend the period of limitation as provided under Section 150 of the Act for the purpose of issuing impugned notice in respect of Assessment Year 1993-94.

On this ground alone, the impugned notice is not sustainable as it is clearly time barred.

20 In any view of the matter, the reasons in support of the impugned notice as reproduced herein above, do not indicate even remotely that there has been any failure on the part of the Petitioner to disclose truly and fully all material facts necessary for the assessment.

This itself is fatal to the impugned notice as all the other conditions precedent to issue of re-opening notice under Sections 147/148 of the Act have to be satisfied.

This even in cases where Section 150 of the Act is invoked as Section 150 of the Act merely extends the period of limitation but does not absolve the revenue from satisfaction of other conditions.

21 Moreover, during the assessment proceeding under Section 143(3) of the Act, the Assessing Officer called for details relating to the R.JOSHI 14 of 15 ::: Uploaded on - 21/08/2014 ::: Downloaded on - 02/08/2016 13:33:45 ::: wp-3314-2004.sxw assets available and the claim for depreciation.

The Petitioner responded to the same and was subject matter of consideration by the Assessing Officer inasmuch as he disallowed the claim of 100 depreciation in respect of three items i.e. Semi Conductor, Comber Machine restricting it to 25.

It would thus be seen that the Assessing Officer had applied his mind to the depreciation claimed by the Petitioner during regular assessment proceeding.

Thus, the impugned notice is also not sustainable as being issued on mere change of opinion.

22 In view of the aforesaid reasons, the impugned notice dated 26 March, 2003 is quashed and set aside and Petition is allowed.

S.KULKARNI,J.) (M.S.SANKLECHA,J.) R.JOSHI 15 of 15 ::: Uploaded on - 21/08/2014 ::: Downloaded on - 02/08/2016 13:33:45 :::

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