The availability of revision under Section 264 of the Income Tax Act for assessment years prior to the deletion of the explanation to Section 143, as interpreted in the judgments of TV STC 114 HOOSEIN KASIM DADA (INDIA) LIMITED Vs. THE STATE OF MAHDYA PRADESH AND OTHERS and KARIMTHARUVI TEA ESTATE LIMITED v. STATE OF KERALA.

( 1 ) PETITIONER in these three petitions is calling in question the intimation dated 14. 12. 1999, 27. 3. 2002, 22. 2. 2002 issued under Section 143 (1) (a) of the Income Tax Act by the first respondent in terms of Annexures A, A1 and A2. Petitioner is also questioning a common order passed under Section 264 of the Income Tax Act in No. LRF Nos. 7,8,9/2002-03/cit-I, passed by the second respondent for the assessment years 1997-98 to 2000-2001 in terms of Annexure-C.

( 2 ) FACTS in brief are as under: petitioner is a Company registered under the Companies Act, 1956 and is engaged in the manufacture of special purpose machinery. Petitioner has filed its return of income for the assessment years 1998-99 on 30. 11. 1998, for the year 1999-2000 on 31. 11. 1998, for the year 1999-2000 on 31. 12. 1999, and for the year 2000-2001 on 30. 11. 2000. These returns were processed and intimations were given in terms of Annexure A, A1 and A2. Petitioner entered into a sale cum lease transaction with Andhra Pradesh State Electricity Board (APSEB for short) for the purpose of purchase and distribution of power. APSEB was interested in the sale of its plant and machinery in order to raise resources for carrying on its business and to avoid cash crunch. Petitioner negotiated with APSEB for purchase of the said assets. Petitioner purchased the specified items of plant and machinery from APSEB. Thereafter, same was again leased back to APSEB. A lease-cum-agreement was entered into between the parties. Petitioner claimed 100 per cent depreciation in terms of the Act on the assets, namely pollution control equipment, etc. Arrangement under the lease was that the lease rentals were to be made over year after year. Depreciation was claimed as per the Income Tax Act in relation to the assets which had been purchased from APSEB and later leased out in itsfavour. Petitioners claim of purchase was not accepted by the assessing authorities, first appellate authority and the second appellate authority. Aggrieved by the order, petitioner filed an appeal before this Court in ITA No. 92 of 2002. The Assessing Authorities considered that there was only an advance of money given to APSEB and that there was no sale of equipment by APSEB to the petitioner. The assessing authorities calculated the assumed interest at 18 per cent on the amount advanced and brought to book the said interest. The matter, as earlier mentioned, was taken to the Tribunal. Petitioner offered lease rentals for the purpose of taxation. First respondent acted upon the returns, and, while for the year 1996-97 lease rentals have not been accepted, for the subsequent years the offer of lease rentals for the purpose of income tax were accepted, and the lease rentals was assessed, the case for the year 1996-97 is pending in this Court with regard to sale and leasing back. Petitioner on receipt of the orders under Section 143 (1) (a) of the Income Tax Act (Act for short), filed a revision petition before the Commission of Income Tax under Section 264 of the Act in terms of Annexures B, B1 and B2. Commissioner rejected the same by way of a common order dated 26. 9. 2002 in terms of Annexure-C. Petitioner with these facts is before me.

( 3 ) RESPONDENTS have entered appearance. Matter is head for final disposal.

( 4 ) LEARNED counsel for the petitioner took me through the provisions of the Act to contend that the vested right is taken away by giving retrospective operation to the provisions of the Act. Learned counsel says that the revision may not be available for the year 2001-2002 but certainly it is available for the previous years. Respondents counsel supports the order.

( 5 ) AFTER hearing, I have carefully perused Annexure-C, an order passed by the Commissioner of Income Tax. The Commissioner of Income Tax, while considering the Revision Petitions No. 7,8 and 9/2002-03/cit-I i. e. for the assessment years 1996-99, 1999-2000 and 2001-2002, notices the deletion of the explanation to Section 14

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