CHANDURKAR C.J.


These four tax cases can be disposed of by this common judgment because the only material question which arises in these cases which relate to the same assessee is whether the assessment proceedings were validly reopened by the ITO under s. 147(b) of the I.T. Act, 1961. T.Cs. Nos. 634 and 635 relate to the assessment under the I.T. Act and the question referred to this court reads as follows.



"Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was right in holding that the reopening of the assessments made under the provisions of section 147(b) for the assessment years 1965-66 and 1966-67 themselves were not proper?"


T.C. Nos. 1538 and 1539 of 1977 arise out of the assessment to surtax and reopening of the assessments under s. 8 of the Surtax Act for the assessment years 1965-66 and 1966-67. The question referred in these cases is as follows


"Whether, on the facts and in the circumstances of the case, it has been rightly held that the reopening of the assessments made under section 8 of the Surtax Act for the assessment years 1965-66 and 1966-67 themselves were not proper and accordingly setting aside the assessment made by the Income-tax Officer ?" *


The orders in the original assessment proceedings have not been made a part of the statement of the case while reproducing the facts as set out in the statement of the case. The statement of the case relating to the proceedings under the I.T. Act shows that while making the assessment for the assessment years 1965-66 and 1966-67, the ITO had allowed the claim of rebate under s. 84 of the I.T. Act and for calculating the rebate, what the ITO did was that he computed the capital by including half the profits that had accrued during the respective years. There was later an audit inspection and on the basis of the audit inspection note, the ITO took the view that the inclusion of half year's profit was not correct. The ITO reopened the proceedings and reduced the rebate allowable under s. 84 by reducing the capital computation by the extent of half the profits which were added in the original assessments. When an objection was taken to the validity of reopening the assessment, the ITO referred to the decision of this court in the case of Salem Provident Society Limited and the decision of the Kerala High Court in the case of United Mercantile Co. Ltd. v. CIT. The appeals filed by the assessee came to be dismissed. When the matter was taken to the Tribunal by the assessee, the Tribunal took the view that the case involved merely an interpretation of sub-rule (5) of rule 19 of the I.T. Rules and information regarding a position of law had to come from a person in whom the statute vested powers to decide questions of law if it is to constitute information for the purpose of s. 147(b). The Tribunal took the view that the audit cannot be accepted as

"an authority on law or on a proper interpretation of the legal provisions" *


and, therefore, there was no information on which the ITO could reopen the proceedings under s. 147(b). The Tribunal thus allowed the appeals and held that the reassessment proceedings were invalid. The Tribunal declined to go into the question as to "whether rule 19(5) was properly interpreted by the Revenue"


The statement of the case relating to the reopening of the assessment under the Surtax Act merely referred to the statement of the case in the proceedings under s. 147(b) of the I.T. Act. It is not in dispute that the surtax proceedings were reopened only on the ground that the regular assessment proceedings were reopened. These cases had come up before Division Bench of this court on an earlier occasion. By an order dated February 3, 1982, the Division Bench found that the discussion in the appellate order of the AAC was general in character and did not particularly turn on whether the information in question was what the officer himself had ferretted from the old records or whether the information came to him from an external source. At the time when the Division Bench heard the matter, the law with regard to the scope of s. 147(b) of the I.T. Act had come to be settled by the Supreme Court in Indian & Eastern Newspaper Society v. CIT. The Division Bench took the view that there was nothing in the order of the Tribunal

"to show what kind of audit note which, according to the Tribunal, the records disclosed" *


and since it was essential for the disposal of the reference on the question of law propounded by the Tribunal to get to know what the records disclosed as respects

"the audit note, its contents and its timing it was necessary to direct the Tribunal to draw up a supplemental statement of the case and annex the audit note to the statement of the case. Accordingly, the Tribunal was directed to draw up a supplemental statement of the case and if the Tribunal considered it fit, to annex to the statement of the case extracts from the ITO's note-sheet in the assessment fileA supplementary statement of the case has now been submitted by the Tribunal. The supplementary statement of the case gives exhaustively the extracts of the day-to-day proceedings which had taken place before the ITO. One of the entries in the records, dated November 26, 1969, reads as follows" *


In the assessment completed on June 21, 1968, while computing capital for purposes of allowing relief under section 84 in respect of the new transformer unit, it is seen that the proportionate profit attributable to the new unit has been added back. This is not correct as the capital has been computed on average assets and liabilities method which also includes the average profit. As excess relief has been granted, the assessment requires revision. A notice under section 154 put up."


However, the further note dated March 25, 1970, reads


" As directed by the Income-tax Officer, notice under section 148 put up.


"This shows that the ITO originally contemplated rectification proceedings to be taken under s. 154 but for reasons best known to the ITO and which are not found on record, he decided to reopen the proceedings under s. 147(b) of the Act. The statement of the case further shows that though the order sheet dated November 26, 1969, for the assessment year 1965-66 did not make any direct reference to the audit report, the entry of the same date for the assessment year 1966-67 refers to the Accountant General's audit objection filed in the assessment records. In the statement of the case, the Tribunal states that the entry for the year 1965-66 must also have been induced by the Accountant-General's audit report. The Tribunal also annexed the audit report to the statement of the case.


The audit report shows that according to the audit, for the assessment year 1965-66 relief under s. 84 of the Act has been granted on an excess amount of Rs. 45, 491 resulting in underassessment of income-tax of Rs. 22, 060. The reason disclosed is that the ITO had given relief admissible under s. 84 of the I.T. Act in respect of the new transformer production unit on a sum of Rs. 1, 86, 710 which has been arrived at by the adoption of the "average assets and liabilities method" contemplated in rule 19 of the I.T. Rules, 1962. The audit note points out that the proportionate profit attributable to the new unit amounting to Rs. 7, 58, 183 had also been included in the calculation of the average value of the assets and liabilities and that this profit should be ignored as such profits would already stand included in the total assets and liabilities of the assessee as shown in the balance-sheet. This was for the assessment year 1965-66. For the assessment year 1966-67, it was indicated that the figure for "additions to common assets" has been erroneously taken to be Rs. 2, 61, 613 whereas the correct figure was Rs. 1, 12, 381 and on account of the said errors, relief under s. 84 has been granted on an excess amount of Rs. 66, 013 as against Rs. 25, 290, resulting in underassessment of tax to the extent of Rs. 23, 600. Consequent upon these errors which according to the audit note, had occurred, re computation with regard to surtax also became necessaryThe Tribunal has taken the view that the audit note has pointed out that the provisions of sub-r. (5) of r. 19 have been wrongly applied and, therefore, such an error which was pointed out by the audit note cannot be treated as information for the purpose of s. 147(b) of the I.T. Act


It is vehemently pressed upon by the learned counsel for the Revenue that notwithstanding the decision of the Supreme Court in Indian & Eastern News paper Society v. CIT, we should follow the decision of the Supreme Court under the Sales Tax Act in Anandji Haridas & Co. (P.) Ltd. v. Kushare, STO. According to the learned counsel, in this decision of the Supreme Court which was rendered by a larger Bench of five judges, the Supreme Court has approved the decision of this court in Salem Provident Fund Society Ltd. v. CIT. This court in Salem Provident Fund Society's case had observed that in cases of obvious mistakes apparent on the face of the record of assessment, that record itself can be a source of information, if that information leads to a discovery or belief that there has been an escapement of assessment or underassessment. The learned counsel, therefore, vehemently contended before us that the mistake in computation of tax having been pointed out by the audit note, such communication would amount to information for the purpose of s. 147(b) of the I.T. Act. Now, it is difficult for us to see how the fact that the decision in Anandji Haridas case which has been rendered by a Bench of five judges can take away the binding nature of the decision of the Supreme Court in Indian and Eastern Newspaper Society's case, which was expressly rendered on a construction of s. 147(b) of the I.T. Act. The Supreme Court has clearly laid down in that decision that the opinion of the audit party on a point of law could not be regarded as "information" enabling the ITO to initiate reassessment proceedings under s. 147(b). In that case, the ITO, when he made the original assessment, had considered the provisions of ss. 9 and 10 of the Indian I.T. Act, 1922, and the Supreme Court took the view that any different view taken by the ITO afterwards on the application of those provisions would amount to a change of opinion on material already considered by him. This decision of the Supreme Court has been considered by the Bombay High Court in two later decisions which have been cited before us on behalf of the Revenue. It was considered in CIT v. Killick Industries Ltd. to which one of us was a party. In that case, the ground on which the ITO sought to initiate the reassessment proceedings under s. 34(1)(b) of the Indian I.T. Act, 1922, was that the income from house property was not offered by the assessee under the correct head in the return. It was held to be a case of mere change of opinion on the part of the ITO and the reassessment proceedings were held not to have been validly initiated. The learned counsel for the Revenue has invited our attention to the extract reproduced in that decision from the earlier decision of the Supreme Court in Kalyanji Mavji & Co. v. CIT When the Division Bench of the Bombay High Court was referring to the decision in Kalyanji Mavji & Co.'s case , what was being done was to set out the law relating to the construction of s. 147(b) prior to the decision in Indian & Eastern Newspaper Society's case. But we may point out that even in Kalyanji Mavji & Company's case the Supreme Court had pointed out that where the ITO gets no subsequent information but merely proceeds to reopen the original assessment without any fresh facts or materials or without any enquiry into the materials which form part of the original assessment, s. 34(1)(b) would have no application. We may point out that in the later decision of the Supreme Court in Indian & Eastern Newspaper Society's case, the Supreme Court had clearly observed that the proposition in the decision of the Supreme Court in the case of Kalyanji Mavji and Co. to the effect that a case where income had escaped assessment due to "oversight, inadvertence or mistake" of the ITO must fall within s. 34(1)(b) of the Indian I.T. Act, 1922, was stated too widely and travels farther than the statute warrants in so far as it can be said to lay down that if, on reappraising the material considered by him during the original assessment, the ITO discovers that he has committed an error in consequence of which income has escaped assessment, it was open to him to reopen the assessment. The Supreme Court clearly pointed out that an error discovered on a reconsideration of the same material (and no more) does not give him that power. The decision in Kalyanji Mavji and Co.'s case was clearly departed from by the Supreme Court and when the Supreme Court added the words "and no more", it had clearly indicated that before the ITO invokes his power under s. 147(b), the material in his possession must be something more than what he had at the time when the original assessment was made. The Supreme Court's decision in Indian and Eastern Newspaper Society's case was once again considered at length by the Bombay High Court in CIT v. Dennis [1982] 135 ITR I to which also one of us was a party. In that decision, five propositions were laid down which would govern a case under s. 147(b) of the I.T. Act. We may reproduce the following passage from that decision (p. 14)" *


The whole controversy centres round the question as to what does and does not constitute information within the meaning of s. 147(b). The position of law with regard to the said controversy is that (1) the information may consist of facts or of law


(2) the information must be fresh or subsequent to the original assessment


(3) the factual information may be derived from external sources or may be gleaned from the material which was already on record at the time of the original assessment


(4) a mere change of opinion on the material already considered or occasioned by a reappraisal of the same material is not information. The change of opinion must be supported by fresh information obtained from the record


(5) opinion expressed by the department or by the CBR is not law. Law is that which is laid down either by the Legislature or judicial decisions and it is the change in such law which constitutes a fresh or subsequent information.


"The second proposition will show that for the purpose of s. 147(b), the information must be fresh or subsequent to the original assessment. The learned counsel for the Revenue has argued that the Revenue is relying on the third proposition and, according to him, the factual information in the instant case has been derived from an external source, namely, the audit note, and, therefore, there was no justification for reopening the assessment under s. 147(b) of the Act. We have repeatedly tried to ascertain from the learned counsel for the Revenue as to what was the exact nature of the information on which the Revenue was relying when it sought to justify the reassessment proceedings under s. 147(b) of the I.T. Act. The learned counsel made it clear to us that the information consisted of the fact that the audit note has informed the ITO that he has committed a mistake while computing the income and giving effect to the deductions for the purpose of s. 84 of the I.T. Act. In other words, the contention of the Revenue appears to be that whenever the audit note points out a mistake in the order of the ITO, such mistake will enable the ITO to take recourse to his power under s. 147(b) of the I.T. Act. If the argument of the learned counsel is carried to its logical conclusion, the audit may also point out a mistake of law which has resulted in a mistake in the computation made by the ITO and even on such a mistake being pointed out, the ITO would be entitled to reopen the assessment which, of course, would be wholly contrary to the law laid down by the Supreme Court in Indian and Eastern Newspaper Society's case. It is obvious that the information contemplated by s. 147(b) has to be fresh information and the ITO must come to know of that information subsequent to the assessment order. If there are facts which are already on record of which the ITO has knowledge and knowingly on the basis of those facts, lie applies a provision of law-rule 19(5) in the instant case erroneously and if such an error is pointed out to the ITO by the audit note, it would obviously be an information as to the law as was the case in Indian and Eastern Newspaper Society. Putting the ITO in the knowledge of the construction which the audit party was inclined to place on a particular rule which has been interpreted in a different manner by the ITO while giving relief to the assessee can, in our view, in no sense of the term constitute an information of fact as argued before us by the learned counsel for the Revenue. We may in passing refer to an earlier decision of this court in United India Fire and General Insurance Co. Ltd. v. CIT, in which, after referring to the decision of the Supreme Court in Indian and Eastern Newspaper Society v. CIT, the Division Bench observed as follows (at p. 92 of 153 ITR)" *


In cases where the ITO is moved to reopen an assessment on the basis of information as to a fact, it is essential that the information must be subsequent to the conclusion of the original assessment. But it is not necessary that the information should have an outside source. The information may be found in the assessment records themselves. Without information of this kind, the ITO cannot go over the same ground of the original assessment, and seek to reopen it under the enabling Provisions of the statute merely on the score that he had Rendered a wrong decision on the facts or on a wrong understanding of the facts Relevant to the assessment, while making the original order of assessment.


"These observations have

our respectful concurrence. The learned counsel appearing on behalf of the assessee has invited our attention to rule 19(5) of the Rules which reads as follows" * 19(5) For the purpose of ascertaining the average amount of capital employed in a business during any computation period, the profits or lossess made in that period shall, except so far as the contrary is shown, be deemed (a) to have accrued, at an even rate, throughout the said period and (b) to have resulted, as they accrued, in a corresponding increase or decrease, as the case may be, in the capital employed in the business. " It is argued by the learned counsel and, in our view, with justification, that the audit note has differed from the interpretation placed on this rule by the ITO himself and since the ITO has construed the rule in manner different from what according to the Audit Department was the correct content of rule 19(5), the instant case would be squarely covered by the decision in Indian and Eastern Newspaper Society v. CIT. We are inclined to accept this contention. The question of ascertaining the average amount of capital employed in the business during any computation period for the purpose of relief under s. 84 is dealt with by rule 19(5). There is obviously difference of opinion between the ITO and the Audit Department as to the true meaning and content of rule 19(5). By the audit note, the Audit Department wanted the ITO to construe rule 19(5) according to the construction placed by the Audit Department. It is, therefore, clearly a case where an error of law is sought to be pointed out to the ITO, and, in our view, this case would be squarely covered by the decision in Indian and Eastern Newspaper Society v. CIT. Having regard to the view which we have taken, we do not find any error in the view taken by the TribunalThe questions referred to us in all the four cases are, therefore, answered in the affirmative and in favour of the assessee. Assessee to get the costs in these cases.