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TMI Blog1989 (9) TMI 17X X X X Extracts X X X X X X X X Extracts X X X X ..... as reduced by the amount of the capital gains ?" There is no dispute between counsel in regard to the answers to be given to the second and third questions. They are agreed that both these questions must be answered in favour of the Revenue, having regard to the judgment of a Full Bench of this court delivered on September 8, 1989, in Income-tax Reference No. 401 of 1975 (CIT v. Central Bank of India Ltd. [1990] 185 ITR 6). The second question is, accordingly, answered in the affirmative and in favour of the Revenue and the third question is answered in the negative and in favour of the Revenue. This brings us to the facts in relation to the first question, the answer to which is contested. The question relates to the assessment year 1965-66. On the dividend income of the assessee for that year it was entitled to relief under section 85A in respect of inter-corporate dividends. It contended before the Income-tax Officer that the average rate of income-tax under section 85A meant the rate determined by dividing the amount of income-tax it had to pay on its total income less the amount of its capital gains by the amount of its total income less the amount of its capital gains. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ief given to the assessee under section 85A. The Tribunal found that the Appellate Assistant Commissioner's said order had merely upheld the changed stand of the Income-tax Officer in regard to the assessment year 1966-67 and it did not constitute information for the purposes of section 147(b). It took the view that what was originally a change of opinion could not stand transformed into information only because the Appellate Assistant Commissioner's said order had confirmed the Income-tax Officer's stand. Accordingly, it held that the reassessment was invalid. It also upheld the assessee's contention in regard to the meaning to be given to "average rate of income-tax" for the purposes of section 85A. From the judgment of the Tribunal arise the questions that are referred to us. Section 147(b) says that notwithstanding the fact that there has been no omission or failure on the part of the assessee as is set out in section 147(a), if the Income-tax Officer has, in consequence of information in his possession, reason to believe that income chargeable to tax has escaped assessment for any assessment year, he may reassess such income. It was submitted by Mr. Jetley, learned couns ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idity and binding nature. Law may be statutory law or, what is popularly described as, judge-made law. In the former case, it proceeds from enactment having its source in competent legislative authority. Judge-made law emanates from a declaration or exposition of the content of a legal principle or the interpretation of a statute, and may in particular cases extend to a definition of the status of a party or the legal relationship between parties, the declaration being rendered by competent judicial or quasi-judicial authority empowered to decide questions of law between contending parties. The declaration or exposition is ordinarily set forth in the judgment of a court or the order of a Tribunal. Such declaration or exposition in itself bears the character of law. In every case, therefore, to be law it must be a creation by a formal source, either legislative or judicial authority. A statement by a person or body not competent to create or define the law cannot be regarded as law. The suggested interpretation of enacted legislation and the elaboration of legal principles in text books and journals do not enjoy the status of law. They are merely opinions and, at best, evidence in r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heir face value whereas the Assistant Controller of Estate Duty had come to the conclusion that the market value should have been made at the rate of 52% of the face value. This observation of the Board had been treated as information for the purposes of reopening the assessment. The Supreme Court noted that in A. Raman and Co.'s case [1968] 67 ITR 11, the court defined the expression "information" in section 147(b) of the Income-tax Act as "instruction or knowledge derived from an external source concerning facts or particulars, or as to law, relating to a matter bearing on the assessment". Having regard to this, the court found it difficult to see how the determination of value for the purposes of assessment of estate duty would not fall squarely within the meaning of the expression "information" when that expression was understood in the sense of instruction or knowledge derived from an external source concerning facts or particulars or as to law on a matter bearing on the assessment. The opinion expressed by the Board was, on the basis that it was a mixed question of fact and law, held to be information justifying the reassessment. The Gujarat High Court in K. Mansukhram and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dings influence the course of the assessment by deciding any one or more of those matters which determine an assessee's tax liability. He is the first appellate authority under the Act and the Tribunal is the second. The orders of the Tribunal which have been held, as aforementioned, to give information as to law must stand on the same footing as the orders of the Appellate Assistant Commissioner delivered on first appeal. In our view, therefore, an order of the Appellate Assistant Commissioner can convey information as to law. Mr. Dastoor relied upon the decision of the Gujarat High Court in Shrenik Kasturbhai v. CIT [1974] 95 ITR 326. This was a reference under the Wealth-tax Act. The Wealth-tax Act did not make a provision for service of notice by the Appellate Assistant Commissioner on the Wealth-tax Officer or grant him a right of hearing in that appeal. It was submitted by the assessee that the order of the Appellate Assistant Commissioner was bad in law because the Wealth-tax Officer had not been given an, opportunity of being heard. The Gujarat High Court turned down this submission of the assessee and, in so doing, noted that the Appellate Assistant Commissioner was not ..... 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