TMI Blog2006 (3) TMI 80X X X X Extracts X X X X X X X X Extracts X X X X ..... t required. - impugned notice is ultra vires the provision of section 154 – held that if the decision is rendered pursuant to an invalid notice the subsequent action cannot stand. As such the order passed pursuant to the impugned notice is not sustainable in law and the same is set aside and quashed - - - - - Dated:- 31-3-2006 - Judge(s) : KALYAN JYOTI SENGUPTA. JUDGMENT Kalyan Jyoti Sengupta J.- By this writ application the petitioner has basically challenged the action of the Joint Commissioner of Income-tax, Special Range-2 (respondent No. 1), purported to be under section 154/155 of the Income-tax Act, 1961. After having heard Dr. Pal and learned counsel for the respondent it appears to me that the scope of the enquiry in the w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amalgamation sanctioned by this hon'ble court and the hon'ble High Court at Bombay. On March 23, 1996, the Assessing Officer by his assessment order for the assessment year 1993-94 allowed the claim of depreciation on the assets, made by Brooke Bond India Limited subsequent to amalgamation for the period from January 1, 1993 to March 31, 1993, which had hitherto been owned by Tea Estate India Limited and was transferred to Brooke Bond India Limited under the scheme of amalgamation. Tea Estate India in its own assessment has been allowed depreciation on those assets for the period from April 1, 1992 to March 31, 1992 (prior to the date of amalgamation). As the said assets vested in Brooke Bond India Limited with effect from January 1, 1993, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cords to enable respondent No. 1 to exercise his power for rectification under section 154 as he has sought to do. In support of his contention he has relied on a large number of decisions of this court as well as the Supreme Court, viz., (Vijay Mallya v. Asst. CIT [2003] 263 ITR 41 (Cal); T.S. Balaram, ITO v. Volkart Brothers [1971] 82 ITR 50 (SC); Poothundu Plantations P. Ltd. v. Agrl. ITO [1996] 221 ITR 557 (SC); CIT v. South India Bank Ltd. [2001] 249 ITR 304 (SC); Bata India Ltd. v. IAC of I.T. [2001] 249 ITR 491 (Cal) and ITO v. India Foils Ltd. [1973] 91 ITR 72 (Cal)). Learned counsel for the Revenue contends that the notice has been issued rightly and lawfully and in proper exercise of jurisdiction. The writ petitioner in response ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... correctly allowed the depreciation applying the correct law on the date of the assessment having regard to the position of the law prevailing at the time of the previous year in connection with the relevant assessment year. I think while excising power of judicial review I will not exceed my limitation. My endeavour would be to examine whether the impugned notice could be issued on the basis of the statement of facts as narrated therein or not meaning thereby whether he has exercised Jurisdiction lawfully on the given statement of facts. Sub-section (1) of section 154 is very clear to understand under what circumstances the rectification can be made. It is apposite to set out the language of sub-section (1) of section 154 which is as follow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n has been correctly applied or not is a debatable issue. From the language of the impugned order as quoted above it is clear that respondent No. 1 has found that allowance of the depreciation to M/s. Brooke Bond Lipton India Limited is irregular in view of Explanation 2 to section 43(6) of the said Act. Therefore, it is clear that respondent No. 1 thinks that Explanation 2 to section 43(6) of the said Act should have been applied and, sequelly subsection (1), section 32, was wrongly applied. It is further clear from the affidavit-in-opposition affirmed by one Smt. Anuradha Mukherjee being respondent No. 1 in paragraphs 6A and 6B where it is stated that both the interpretations of the Act drawn by the petitioner company are patently wrong. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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