A.K.SARKAR, J.

(1) THIS appeal is entirely without substance. It arises out of an application under Art. 226 of the Constitution made by the respondent assessee for a writ quashing an order of assessment made under s. 34 of the Income-tax Act, 1922.

(2) THE respondent made" advance payment of tax under s. 18 A (1) of the Income-tax Act for the assessment year 1952-53. On August 30, 1952, regular assessment for this year was made and a part of the tax paid in advance was thereupon found refundable to the respondent. Under the provisions of sub-s. (5) ofs. 18A, as it then stood, interest at a certain rate was payable on the amount paid in advance by an assessee under this section. Rupees 14,720-14-0 were found payable to the respondent under this provision and this sum was paid sometime in September 1952. On May 24, 1953, sub-s. (5) ofs. 18A was amended with effect from April 1, 1952. It is not necessary to refer to this amendment in detail and it is enough to state that under it the Government was to have paid to the respondent Rs. 9,404-5-0 instead ofRs. 14,720-14-0.

(3) ON March 18, 1957, a notice was issued under s. 34 (1) (b) stating that as the Income-tax Officer had reason to believe that the respondents income for the assessment year ending March 31, 1953, had been under-assessed and had been the subject of excessive relief, he proposed to re-assess the said income. The respondent protested but notwithstanding the protest, the re-assessment under s. 34 was, made on July 30, 1957. The order of reassessment stated: "As per the amended provisions of Section 18A (5) the assessee was entitled to interest of a much smaller amount than what has been allowed to him during the original assessment. As excessive relief has been allowed to the assessee in the original assessment u/s. 23 (3) and in order to enable me to recover the excess interest allowed action under Section 34 was taken........................

(4) HENCE I will proceed to recover the excess interest allowed to the assessee during the original assessment." On the application of the respondent under Art. 226 of the Constitution this order was set aside by the High Court of Bombay. Hence this appeal.

(5) SECTION 34 of the Act under which the impugned order was made so far as material for our purposes is in these terms: S. 34. (I) "If (a) .................................... (b) ...............................the Income-tax Officer has...... reason to believe that income, profits or gains chargeable to income-tax have escaped assessment for any year, or have been under-assessed or assessed at too low a rate, or have been made the subject of excessive relief under this Act, or that excessive loss or depreciation allowance has been computed, he may......proceed to assess or re-assess such income, profits or gains or recompute the loss or depreciation allowance,"

(6) THE assessment, re-assessment or recomputation under this section is to be made according to the provisions of the Act as if it was pursuant to a notice under s. 22 of the Act.

(7) UNDER this section, therefore, an assessment earlier made can be re-opened if income, profits or gains have escaped assessment or have been under-assessed or assessed at too low a rate or have been made the subject of excessive relief or excessive loss or depreciation has been computed. It does not seem to us that any of these conditions can be said to have been fulfilled in the present case. The notice under s. 34 stated all these grounds but only two of them have been mentioned in the notice which has been earlier set out by us because counsel for the appellants has not relied on any other ground. With the other grounds we are not, therefore, concerned in this case. The two that have been relied on are cases where income has been under-assessed or has been made the subject of excessive relief. It may be noticed here that the order of July 30, 1957 was based only