Bombay H.C : Whether, for the purposes of computing the written down value for the asst. yrs. 1962-63 and 1963-64, the contributions made by theconsumers prior to January, 1961, should be deducted ?

Counsel Appeared

S. E. Dastur with Miss. S. V. Chhaberia, for the Assessee : R. J. Joshi with Sajnani, for the Revenue

KANIA, J.:

Two questions have been referred to us for our determination in this reference under s. 256(1) of the IT Act, 1961 (referred to hereinafter as “the said Act”). The said questions are as follows:

“1. Whether, on the facts and in the circumstances of the case, the proceedings under s. 147(b) for the asst. yr. 1962-63 were valid in law, and 2. Whether, for the purposes of computing the written down value for the asst. yrs. 1962-63 and 1963-64, the contributions made by theconsumers prior to January, 1961, should be deducted ?”

2. The relevant assessment years are 1962-63 and 1963-64, respectively. The assessee is a limited liability company which carries on the business of generation and distribution of electricity at two places, namely, Jaunpur and Fyzabad. It maintained accounts on the basis of calendar years, so that the corresponding “previous years” for the two years in the reference are the calendar years 1961 and 1962. The assessee laid electric cables for supplying electrical energy to the consumers. The consumers were required to contribute a portion of the cost of cables. The written down value of the service connections as on January 1, 1961, was Rs. 1,21,111 in the case of the undertaking of the assessee at jaunpur and Rs. 2,93,527 in the case of the undertaking of the assessee at Fyzabad. The consumers, contribution at jaunpur was Rs. 1,59,969 and that at Fyzabad was Rs. 2,70,584. Under s. 10(5) of the Indian IT Act, 1922, the consumers’ contribution was not to be deducted for working out the written down value and depreciation under that Act and for both the assessment years under consideration, the assessee claimed that the written down value of the service connections as worked out under the Indian IT Act, 1922, should be adopted as the written down value for working out the depreciation. The said Act, namely, the IT Act, 1961, was applicable to the said assessment years and in the said Act the definition of the term “actual cost” was changed. In respect of the asst. yr. 1962-63, which was to be made under the said Act, the consumers’ contribution made prior to 1st January, 1961, was not deducted in computing the written down value, but for the asst. yr. 1963-64, the written down value was computed by the ITO after deducting the consumers’ contributions prior to January 1, 1961. The assessment for the year 1962-63 was reopened later under s. 147(b) of the said Act and depreciation of Rs. 13,529 for Fyzabad and Rs. 5,349 for Jaunpur service connections was disallowed. In the proceedings before the ITO, who reopened the assessment for the asst. yr. 1962-63, it was contended by the assessee that the assessment could not be reopened under s. 147(b) as the conditions for bringing into play that provisions were not complied with. In respect of this point, all that the ITO has stated is as follows : “On the day of appointment, two points were urged before me, firstly, the assessment cannot be reopened under s. 147. Secondly, there is no jurisdiction for taking into consideration all the contributions from the consumers right from the beginning. Both points of the assessee cannot be sustained. It will be sufficient to point out that the assessment is reopened very much within the 4 years’ time limit permitted by s. 147(b) under which the assessment is being completed. The assessee had not deducted the contributions from the cost of service line connections as was obligatory in view of the provisions of ss. 43(1) and 43(6).”

Against this decision of the ITO, the assessee preferred an appeal to the AAC. The AAC rejected the contentions of the assessee and confirmed the assessment for the said assessment years. Regarding the question of reopening of assessment under s. 147(b) of the said Act, the AAC held that the ITO concerned, who passed the original order of assessment, had not applied his mind to this question at all at the time of the original assessment and the appellant had not actually supplied the details of the contributions received from the consumers prior to April 1, 1961, along with the return for the asst. yr. 1962-63. A mere mention in the balance-sheet of an account to which contributions had been credited would not assist the appellant in getting out of the mischief of s. 147(b).

The assessee then preferred an appeal to the Tribunal in respect of the legality of the action taken under s. 147(b). The Tribunal practically made the same observations as had been made by the AAC, stating, inter alia, that the ITO while making the original assessment for the year 1962-63 had not applied his mind at all to the question whether the consumers’ contribution had to be reduced from the written down value of the service connections and that no details of the contributions received from the consumers prior to April 1, 1961, were furnished along with the return Regarding the immediately preceding observation made by the Tribunal, an application was made by the assessee to the Tribunal for rectification. That application was rejected, but from the order made on the said rectification application, which order dated June 14, 1971, it can be seen that the assessee had, along with the return, annexed the balance-sheet showing the consumers’ contributions for service connections in respect of the asst. yr. 1962-63. The Tribunal rejected the entire appeal of the assessee. It is from this order of the Tribunal that the aforesaid questions have been referred to us.

Coming first to the controversy regarding the reopening of the assessment for the asst. yr. 1962-63, it may not be out of place to refer to the relevant portion of s. 147 of the said Act at this stage. The said portion runs as follows : “147. If—-(a) the ITO has reason to believe that, by reason of the omission or failure on the part of an assessee to make a return under s. 139 for any assessment year to the ITO or to disclose fully and truly all material facts necessary for his assessment for that year, income chargeable to tax has escaped assessment for that year, or (b) notwithstanding that there has been no omission or failure as mentioned in cl. (a) on the part of the assessee, the ITO has in consequence of information in his possession reason to believe that income chargeable to tax has escaped assessment for any assessment year, he may, subject to the provisions of ss. 148 to 153, assess or reassess such income or recompute the loss or the depreciation allowance, as the case may be, for the assessment year concerned (hereafter in ss. 148 to 153 referred to as the relevant assessment year).”

6. It will be noticed that the action taken by the ITO in reopening the assessment for the asst. yr. 1962-63 was under cl. (b) and not under cl. (a) of s. 147 of the said Act. A plain reading of the said cl. (b) makes it clear that for reopening an assessment under that clause, the ITO must have reason to believe that the income chargeable to tax had escaped assessment for any assessment year and such belief must be in consequence of information in his possession. Although there is considerable controversy as to what is the nature of the information required to be possessed by the ITO before taking action under cl. (b) of s. 147, there is no dispute that he must have information which gives him reason to believe that the income chargeable to tax had escaped assessment. There is also no dispute that such information must be acquired by the ITO after the assessment order, sought to be reopened, had been passed. Mr. Joshi, the learned counsel for the CIT, has urged that the requisite information may even be obtained by the ITO from the record of the original assessment or from an investigation of the material on record or inquiry or research into facts or law. In support of this contention, he relied on the decision of the Supreme Court in Kalyanji Mavji & Co. vs. CIT (1976) 102 ITR 287 (SC). It was pointed out by him that although it has been observed in a subsequent case decided by the Supreme Court that some other dictum laid down in Kalyanji’s case was too wide, the aforesaid proposition relied upon by him was in no way whittled down. It was not disputed by Mr. Joshi that a mere change of mind on the part of the ITO cannot enable him to act under cl. (b), but, according to him, in the present case, as pointed out by the Tribunal, the ITO who passed the original order of assessment had not applied his mind at all to the question of deduction of consumers’ contribution in computing the written down value. Even the realisation by the ITO that he had failed to take this into account, constituted, according to Mr. Joshi, enough ground to take action under cl. (b) of s. 147. In support of this, he has cited several authorities. It was, on the other hand, contended by Mr. Dastur, the learned counsel for the assessee, that the admitted position was that the contributions made by the consumers had been shown in the balance-sheet annexed to the original return for the asst. yr. 1962-63, and that these contributions had been set out in the balance-sheet, and hence the case was one of a mere change of mind on the part of the ITO. According to Mr. Joshi, these contributions have not been set out on the correct side of the balance-sheet, as they were set out by the assessee on the liabilities side, whereas according to Mr. Dastur there was nothing improper or incorrect in this procedure and the said contributions did, in fact, represent liabilities of the assessee. In our view, it is not necessary to go into this controversy or to discuss the cases cited before us in that connection. It is apparent that it is for the ITO reopening an assessment under cl. (b) of s. 147 of the said Act to state that he had reason to believe that the income had escaped assessment in the earlier assessment and that that belief had been induced by the same information received by him after the original order of assessment was made. It is also for him to give some indication at least as to what was the nature of the said information received by him. It may be that it is by oversight that the ITO, who made the original assessment, had overlooked some relevant provisions of law in making the original order of assessment, but it is for the ITO to state that in his order reopening the assessment. Now, in the present case, as we have already pointed out, the only ground given by the ITO for reopening the assessment is that the assessment was reopened very much within the time-limit of four years and that the assessee bad not deducted the said contributions. He has nowhere stated in his order that any information was received by him in this regard after the original order of assessment was made or that the officer who made the original order of assessment had omitted by oversight, or otherwise, to take into account Or to consider the question of the contributions made by the consumers or even that the ITO, passing the original order of assessment, had made any mistake which was later realised by the ITO reopening the assessment. In view of this, one totally fails to see how it was open to the AAC or to the Tribunal to indulge in guess-work as to what was the information on which the ITO passing the order of reassessment, could have acted and this is exactly what the AAC and the Tribunal have done. Both the Tribunal and the AAC have stated that the ITO passing the original order of assessment, had not applied his mind to the question whether the consumers’ contributions had to be deducted from the written down value of the service connections. But one fails to see as to what was the basis on which they could have said so. The order of assessment and that of reassessment were passed by different ITOs. It may be mentioned that even the notice for showing cause against the reopening of the assessment under cl. (b) of s. 147 was not issued by the officer, who passed the original order of assessment, but was issued by the officer, who ultimately passed the order reopening the assessment. The ITO, who passed the original order of assessment, does not seem to have appeared even before the Tribunal or made a statement as to what was the mistake he had made, if any, in passing the original order of assessment. In our view, therefore, there is no material at all to show that there was any information, on the basis of which the ITO passing the order of reassessment under cl. (b) of s. 147, could have acted and the order of reopening the assessment under that clause is clearly bad. In view of this question No. 1 is answered in the negative and against the CIT. Regarding question No. 2, as far as the asst. yr. 1962-63 is concerned, the question becomes academic, because of the view which we have taken on question No. 1. As far as the asst. yr. 1963-64 is concerned, the said question No. 2 is concluded against the assessee by the decision of a Division Bench of this Court in CIT vs. Bassein Electric Supply Co. Ltd. (1979) 118 ITR 884 (Bom), and hence in respect of that assessment year, the said question is answered in the affirmative and against the assessee.

7. Looking to the facts and circumstances of the case, there will be no order as to costs.

[Citation : 142 ITR 300]