- (1.) The Court: By this writ application the petitioner has basically challenged the action of the Joint Commissioner of Income Tax, Special Range-2, (respondent No. l) purported to be under section 154/155 of 1961. After having heard Dr. Pal and learned counsel for the respondent it appears to me that the scope of the enquiry in the writ petition is restricted to whether the way action taken by the respondent No. l is permissible within the scope and purview of section 154 of the said Act or not.
(2.) The notice issued under the aforesaid section is based on the following grounds as indicated in the impugned notice: "In this case the "a" Co. claimed depreciation allowance of Rs.38.09 lakhs for the period from 01.01.93 to 31.03.93 for the fixed assets of Messers Tea Estates of India Limited and the same was allowed. Moreover. Messers Tea Estates of India Limited claimed depreciation of Rs.2.30,90,740/- for 01.04.92 to 31.12.92 and the same was allowed. As per Expl- 2 to section 43(6) this allowance to Messers Brook Bond Lipton India Limited is irregular. Hence, there was excess allowance of depreciation allowance to the "a" Co."
(3.) Short fact of the case is required to be stated to understand the controversy between the parties in a better way. One M/s. Tea Estate Limited was amalgamated with M/s. Brook Bond India Limited under a scheme of amalgamation sanctioned by the Hon'ble High Court at Calcutta and the Hon'ble High Court at Madras on 1st January, 1993. Thereafter on 7th January, 1994 M/s. Lipton India Limited (B.B.I.) and then amalgamated company changed its name to Brook Bond Lipton India Limited. M/s. Brook Bond India Limited thereafter on 1st January, 1996 was amalgamated with the writ petitioner under the scheme of amalgamation sanctioned by this Hon'ble Court and the Hon'ble High Court at Bombay. On 23rd March, 1996 the Assessing Officer by his assessment order for the assessment year 1993-94 allowed the claim of depreciation on the assets, made by Brook Bond India Limited subsequent to amalgamation for the period from 15th January, 1993 to 31st March, 1993 which had hitherto been owned by Tea Estate India Limited and was transferred to Brook Bond India Limited under the scheme of the amalgamation. Tea Estate India in its own assessment has been allowed depreciation on those assets for the period from 1st April, 1992 to 31st March, 1992 (prior to the date of amalgamation). As the said assets vested in Brook Bond India Limited with effect from 1st January, 1993 and the same was used by Brook Bond India Limited during the relevant period which was less than 180 days, 50% of the normal rate of depreciation had been claimed by Brook Bond India Limited and allowed by the Assessing Officer.;