Sabyasachi Mukharji, J. - (1.) This is an appeal, From Panama Private Ltd. v. Income-tax Officer., "C" Ward, Companies Dist.II, Calcutta. challenging five notices issued under Section 148 of the Income-tax Act, 1961, for the assessment years 1964-65, 1965-66, 1966-67, 1967-68 and 1968-69. Of the notices, three were dated the 25th of March, 1969, and two dated the 1st of May, 1969. It is the case of the assessee that in respect of the said assessment years the assessee had filed its returns of income along with and supported by the audited profit and loss accounts, depreciation statements, various other statements in detail. The assessee claimed under Rule 5 of the Income-tax Rules, 1962, read with Appendix I, Part I, under item III(ii), 10% depreciation and was allowed the same. According to the assessee this was allowed after consideration of the relevant facts as this had already been allowed since the assessment year 1961-62. Thereafter, the assessments were sought to be re-opened by the aforesaid notices and the petitioner challenged the said re-opening by this application under Article 226 of the Constitution. In the affidavit-in-opposition in answer to the rule nisi the Income-tax Officer stated that the reasons for the reopening were as follows : "The petitioner claimed depreciation on blade making machinery at the rate of 10% which was inadvertently and/or erroneously allowed in the assessment years 1964-65 to 1968-69. The said machinery is not entitled to the higher rate of depreciation @ 10% but only at 7%. After the said assessments for the said years 1964-65 to 1968-69 were completed information came into my possession that the petitioner was in fact entitled to claim depreciation at 7% on the said blade making machinery. Furthermore, in the assessments of the sister concern of the petitioner, Messrs. Indo-Swing, depreciation allowance on the said machinery had all along been claimed and had been allowed at the rate of 7% only. I say that the petitioner's alleged claim of the special depreciation rates in respect of the said machinery for manufacture of safety razor blade was incorrect and extensive. The said information has also come into possession subsequent to the completion of the said assessments."
(2.) The recorded reasons were also produced before us and these were as follows: "Depreciation on plant & machinery was claimed and obtained by the assessee @ 10%. The correct rate of depreciation, however, is 7% in respect of blade making machinery, (as this) is not machinery qualifying for that higher rate. Thus income liable to tax has escaped assessment prima facie within the meaning of Section 147, Explanation 1(d), in consequence of information in my possession, (I have now ascertained that in the sister concern, M/s. Indo-Swing, C II/I-263/A, the assessee has all along claimed and has been allowed depreciation @ 7% only on identical machinery). Accordingly, I reopen the assessments for 64/65 to 66/67 under Section 147(b); notice under Section 148 to issue."
(3.) It is apparent, therefore, that the reopening was sought, because (i) of the view of the Income-tax Officer that on the blade making machinery the petitioner is entitled to depreciation at the rate of 7% and not at the rate of 10% and as such the petitioner had enjoyed more depreciation than it was entitled to and such a view is based on the (ii) subsequent knowledge that in a sister concern the similar kind of machinery got depreciation at the rate of 7% because it was so claimed by that assessee. The question is can the aforesaid be considered information in terms of Section 147(b) of the Income-tax Act, 1961 ? The scope and ambit of Clause (b) of Section 147 has been the subject-matter of several judicial decisions. Considering several decisions in the case of Diamond Sugar Mills Ltd. v. Income-tax Officer, [1971] 82 I.T.R. 171 (Cal.) I held that in order to be "information" in terms of Clause (b) of Section 147 of the Act the following conditions require to be fulfilled : (a) it must be knowledge or instruction concerning facts or particulars, or as to law relating to a matter bearing on the assessment ; (b) such knowledge or instruction must come into the possession of the Income-tax Officer after the previous assessment; (c) the knowledge or information must be such which leads to the formation of the belief that the income of the assessee had escaped assessment or had been under assessed ; (d) the proximate or immediate source of such information and knowledge must be external; but (e) such knowledge or information could have been derived during the previous assessment from an investigation of the materials on record but was not in fact derived would not prevent such knowledge or instruction from being information in terms of Clause (b). We are, however, of the opinion that the decision of the Income-tax Officer in respect of another assessee for another assessment year is not a decision of any higher authority and is merely an opinion of an officer of coordinate authority on the basis of the facts of the case and that cannot be considered to be the information 'in terms of Clause (b) of Section 147 of the Income-tax Act, 1961. This is the ratio of the decision in the case of Reform Flour Mills (Private) Ltd. v. Commissioner of Income-tax, and we are in respectful agreement with the aforesaid view.;