V.K. Gupta, J. - (1.) Once again a notice issued by an Assessing Officer, Deputy Commissioner of Income-tax, Special Range--12, Calcutta, in this case, is the subject-matter of a writ application filed by an assessee under Article 226 of the Constitution of India. The Assessing Officer has called upon, by the notice dated February 5, 1997, impugned in this petition, the petitioner to furnish certain information with regard to the petitioner's claim for 100 per cent. depreciation allowance amounting to Rs. 35.10 crores in terms of Section 32 of the Income-tax Act. The petitioner is aggrieved by certain observations, made in the impugned notice and has come up to this court assailing the very jurisdiction of the Assessing Officer to issue the notice and to call upon the petitioner to furnish the information mentioned in the notice itself.
(2.) Dr. Pal, learned advocate for the petitioner, has very vehemently contended that the Assessing Officer has not only expressed her mind with regard to the subject-matter of allowing or not allowing depreciation for the 11 lakh electric meters which the petitioner claims to have purchased from the Gujarat State Electricity Board and which in terms were leased out to that Board by the petitioner. The contention of the petitioner is that since all the 11 lakh electric meters were brand new, the petitioner was entitled to 100 per cent. depreciation in respect of all those meters under Section 32 of the Income-tax Act.
(3.) Reliance has been placed by Dr. Pal upon certain judgments of the Supreme Court and the Calcutta High Court. Later on, stress has been laid upon some facts which the petitioner claims are "admitted facts". Since the impugned notice is under challenge and it has been assailed very vehemently, it is desirable to reproduce the notice verbatim. It reads thus : "Sub : Disallowance of depreciation of Rs. 35.10 crs. on electric meters. Reference is invited to hearings on various dates with your representative, Mr. T. K. Neogi, in connection with the income-tax assessment of K. C. T. Bros. (C.S.) for the assessment year 1994-95. It is found that the details relating to sale and lease back transactions relating to electric meters entered into with the G.S.E.B. have not been furnished to date. It is also seen that you have claimed 100 per cent. depreciation amounting to Rs. 35.10 crs. on the leased electric metres. You are required to show cause why depreciation on sale and lease back transaction not be disallowed in view of the fact that sale and lease back is merely a paper transaction. Further, you are required to show cause why penalty under Section 271(1)(b) not be imposed for failing to give information called for under Section 143(2) in connection with the sale and lease back transaction. The details pending are - (i) whether the electric meters purchased by K.C.T. (C.S.) were already in use, or were brand new ; (ii) whether there was physical delivery of the electric meters from Baroda to Bombay and back and proof thereof ; (iii) Source of funding of the purchase of electric meters ; Compliance is called for on March 13, 1997 at 11. a.m. " The contention of Dr. Pal is that the Deputy Commissioner of Income-tax by using the expression "you are required to show cause why depreciation of sale and lease back transaction not be disallowed in view of the fact that sale and lease back is merely a paper transaction" has shown that she has made up her mind in disallowing the depreciation and that according to Dr. Pal is the jurisdictional error which on the very face of the notice is erroneous and hence the petitioner wants that this court should interfere in exercise of its writ jurisdiction. The grievance of the petitioner is that despite the petitioner having furnished all requisite information even prior to February 5, 1997, the Assessing Officer without taking into account all information has once again called upon the assessee-petitioner to furnish the information called for in the impugned show-cause notice.;