JUDGMENT
R. Jayasimha Babu, J.:
The question referred to us at the instance of the revenue is : Whether on the facts and in the circumstances of the case, the Tribunal was right in law in holding that the Income Tax Officer had not assumed valid jurisdiction under section 8(b) of the Companies (Profits) Surtax Act, 1964 and upholding the order of the Commissioner (Appeals) in annulling the reassessments ?. The assessment year is 1968-69.
2. The assessee is a public limited company which derives income from the business of carrying cargo in trucks. The original assessments for the years 1968-69 and 1969-70 were made under section 6(2) of the Companies (Profits), Surtax Act, 1964 on 3-1-1989, and on 28-2-1970, determining the chargeable profits at Rs. 6,71,510, and Rs. 5,03,210 respectively. The Income Tax Officer issued notice proposing to reopen the assessments on 27-10-1970, and on 27-11-1990, respectively and thereafter completed the reassessment, as a consequence of which chargeable profit was revised to Rs. 8,71,228 for the year 1968-69 and Rs. 6,31,457 for the assessment year 1969-70.
3. In computing the capital of the company, originally the assessing officer had adopted the figures, shown in the balance sheet against the reserve and treated the whole of the reserve as part of the capital. In the reassessment, he excluded from the reserve the amount which had been appropriated for payment of dividend, such appropriation having been made at the meeting of the general body of the shareholders of the company, subsequent to the date of the balance sheet.
4. The Income Tax Officer had recorded the allowing reasons for reopening the assessment :
“1. There is an information that the Tribunal has decided in the case of Madras Auto Service Private Limited that in computing the reserve under Schedule I to the Surtax Act, the reserve shown as resene on the first day of the accounting period of the immediately preceding period are not in the nature of reserves inasmuch as director’s meeting in which the appropriation to reserve is made on a date which is later than the last day of the previous accounting period. Since this aspect decided in the business Profit Tax Act, in the case of CIT/CEPT v. Vasantha Mills Ltd. (1957) 32 ITR 237 (Mad) incorporated in the ExpIanation to rule 1 of Second Schedule to the Surtax Act, has been omitted to be complied properly in this case and on the basis of the information about the decision of the Tribunal dated 28-8-1970, profit chargeable to tax has escaped assessment in this case.
2. Internal audit party had also pointed out certain mistakes in the commutation of capital mistakes in the commutation of capital particularly the non-application of rule 4 exempt profits.
3. Therefore issue notice under section 8 of the Surtax Act, calling for returns, etc.”
5. In the case of Madras Auto Service (P) Ltd. to which the officer had referred to in the note, it appears to have been held by the Tribunal that the transfer to the general reserve from the profit of the relevant year could not be included in computing the surtax where transfer was effected by virtue of resolution passed in the general body meeting of shareholders subsequent to the date of balance sheet. The Tribunal rendered this decision on 27-8-1970. The decision, however, was practically repelled by the Tribunal on 17-8-1971, when it allowed miscellaneous petition and held that the amount though appropriated subsequent to the date of balance sheet the appropriation made by the general body meeting would relate back to the date of the balance sheet.
6. In the appeal filed by the assessee against the orders of the reassessment, the Commissioner (Appeals) held that the Income Tax Officer had merely changed his opinion as the reassessment order did not disclose any details about the order of the Tribunal on the basis of which the reopening was done. The Tribunal, on further appeal, after setting out the reasons recorded by the Income Tax Officer has held that the order of the Tribunal on which the Income Tax Officer has relied for reopening the assessment having been subsequently set aside by the very same Tribunal it could no longer be said that the Income Tax Officer had any information on the basis of which he could have validly reopened the assessment. The Tribunal has, therefore, not gone into any other aspects of the case for confirming the order of the Commissioner (Appeals).
7. It is not in dispute before us so far as the order of reassessment and computation of reserves are concerned they are in accordance with law, declared by the Supreme Court in the case of Vazir Sultan Tobacco Co. Ltd. v. CIT (1981) 132 ITR 559 (SC).
8. Learned counsel for the revenue submitted that the change in the law declared by the Tribunal or court, which law, at the time of initial declaration was required to be regarded as the law by the authorities below, would not render a proceeding initiated on the basis of that declaration, invalid.
9. It was held by the Gujarat High Court in CIT v. Maneklal Harilal Spg & Mfg. Co. Ltd. (1975) 106 ITR 24 (Guj) that a subsequent decision of the Supreme Court setting aside the judgment of the High Court on the basis of which judgment of the High Court reassessment proceedings had been initiated would not be vitiated on account of the law declared by the Supreme Court subsequently. It was observed in the judgment that the Supreme Court’s decision declaring what the law of the land is, cannot be equated to retrospective amendment of the law by the legislature. It was held therein that once the assessment was validly reopened all questions were open for examination in the course of the assessment.
10. A similar view was taken by a Division Bench of Calcutta High Court in the case of CIT v. Assam Oil Co. Ltd. (1982) 133 ITR 204 (Cal) Sabyasachi Mukherji, J., as he then was, speaking for the Bench held that the decision of the High Court, that a particular kind of expenditure is not deductible would constitute information within the meaning of section 147(b) of the Income Tax Act and reassessment proceedings taken as a consequence of such information would be valid. The subsequent reversal of the decision of the High Court by the Supreme Court would not render the previous assessment proceedings void.
11. The view of the Tribunal that the allowing of the miscellaneous petition by the Tribunal in cases at Madras Auto Service (P) Ltd. on 17-8-1971, which had the effect of recalling its order made on 27-8-1970, which order had been relied on by the Income Tax Officer to reopen the assessment rendered what was information initially as mis-information, cannot be sustained.
12. However, the Tribunal not having examined the other aspects of the information recorded by the Income Tax Officer, especially with reference to the audit party and the effect of reliance on the audit’s objections on the need for reassessment and the Tribunal also not having examined the assessee’s contention that even the services did not deal with the aspect which was dealt with by the Income Tax Officer in the original assessment of this assessee for these assessment years, the matter is remitted to the Tribunal for examination of both the aspects and if necessary, the merits of the case.
13. While answering the question referred to us, in favour of the revenue , we remit the matter to the Tribunal to consider those aspects of the appeal which have been adverted to by us in the course of this order.