TMI Blog2004 (10) TMI 52X X X X Extracts X X X X X X X X Extracts X X X X ..... N JYOTI SENGUPTA. JUDGMENT Kalyan Jyoti Sengupta J.- By this writ application the petitioner challenged the impugned notice dated May 15, 2002, in relation to the assessment year 1994-95 under the Income-tax Act, 1961, (hereinafter referred to as "the said Act"), and also proceedings, notices and orders thereunder, issued by the Assistant Commissioner of Income-tax, Circle-V, Calcutta (hereinafter referred to as "the Assessing Officer"), asking the writ petitioner to show cause as to why depreciation claimed to the extent of Rs. 19,16,50,036 and also the amount of expenditure incurred for travel tour of the managing director should not be disallowed, as it does not fall within Explanation 3 to section 43 of the said Act. The short facts, which have led to the filing of this application, are stated hereunder. The first petitioner during the financial year of 1994-95 purchased numerous electric meters on different dates from the Gujarat Electricity Board (hereinafter referred to in short as "the Electricity Board") at a total cost of Rs. 35,10,10,450.63 without taking physical delivery of the same. The first writ petitioner thereafter by two separate lease agreements let the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proper to set aside this issue regarding disallowing the claim of depreciation to the extent of Rs. 23,71,72,400 out of Rs. 35,10,00,000 to the file of the Assessing Officer with the direction to readjudicate the matter afresh after examining and verifying the reliability and veracity of the aforesaid material papers and documents filed by the assessee before us. The Assessing Officer shall adjudicate the issue whether the assessee has claimed depreciation with reference to enhanced costs with a view to reduce liability to income-tax by taking into consideration the papers and materials placed by the assessee before us and by keeping in view the judicial proceedings cited by the parties before us as referred to above. The assessee shall be at liberty to produce or furnish such other material or papers as it may think fit and proper in support of its claim of depreciation on electric meters. The Assessing Officer shall provide adequate opportunity of being heard to the assessee in this respect." As far as the issue of foreign travel undertaken by Mrs. J. Thapar is concerned the Tribunal gave the following direction: "We, therefore, set aside this issue to the file of the Assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otice the Assessing Officer has sought to do piecemeal assessment. According to him this is not permissible under the law as has been settled by a judicial pronouncement rendered in the cases by the Allahabad High Court, Andhra Pradesh High Court and the Kerala High Court reported in Debi Prasad Malviya v. CIT [1952] 22 ITR 539 (All); M. M.A.K. Mohideen Thumby and Co. v. CIT [1955] 28 ITR 252 (AP) and M.O. Thomakutty . CIT [1963] 47 ITR 872 (Ker). He has drawn my attention to section 143, sub-sections (2) and (3) of the Income-tax Act, 1961, that provides for assessment and computation of income. His further contention is that admittedly it is not a case of reassessment under section 147 of the said Act but as a matter of fact this is exactly sought to be done. In support of this case he has relied on a decision of the Supreme Court reported in CIT v. Chittoor Electric Supply Corporation [1995] 212 ITR 404. He has also drawn my attention to the Division Bench judgment of this court reported in Kooka Sidhwa and Co. v. CIT [1964] 54 ITR 54 on the proposition that even in the case of reassessment the Assessing Officer has to proceed under section 23 which is a corresponding provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epreciation has been taken care of and after considering every thing a refund order has been passed, so it reaches its finality. I have examined the order carefully and I hold Mr. Ghosh is right in saying the order does not relate to any decision on the issue of depreciation or the expenditure on account of the foreign tour of Mrs. J. Thapar. I have already quoted the direction of the Tribunal upon the Assessing Officer. It is clear that the Assessing Officer is to decide upon fresh hearing on these two issues. Therefore, the contention of Mr. Murarka that this order being a final one and on fresh decision of the aforesaid two issues is not correct. From the order dated February 12, 2002, it does not appear the Assessing Officer has heard the assessee/petitioner or touched the issue not to speak of deciding the same. So, I hold that irrespective of the effect and implication of the order dated February 15, 2002, the Assessing Officer has to decide afresh, pursuant to the direction of the Tribunal and this cannot be left outstanding in any manner whatsoever. According to him if it is not done the same tantamounts to gross breach of discipline in the quasi-judicial proceedings. It ..... X X X X Extracts X X X X X X X X Extracts X X X X
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