Satish Chandra, J.
1. The assessee is a limited company which went into liquidation in 1949. The assessment years concerned are 1959-60 and 1960-61. For the assessment year 1959-60, the liquidator filed return of income showing interest received to the extent of Rs. 16,800, As against this income the liquidator claimed expenses in respect of salary, postage, travelling, etc., to the extent of Rs. 13,499. For the assessment year 1960-61, the liquidator filed return showing interest income of Rs. 10,997. As against this income the liquidator claimed similar expenses to the tune of Rs. 15,777. The Income-tax Officer made the assessment under Section 23(3) of the Income-tax Act. He accepted the claim of the liquidator and held that the expenses were admissible and allowed deduction. He completed the assessment for the assessment year 1959-60 at an income of Rs. 3,301 and for the assessment year 1960-61 at a loss of Rs. 4,780.
2. Subsequently, the Income-tax Officer was succeeded by another officer. The successor officer issued notice under Section 147(b) for both the assessment years. After hearing the assessee he held that the expenses were not admissible. He, therefore, completed the assessment at the income of Rs. 16,800 and Rs. 10,997 for the two years, respectively. The assessee went up in appeal but failed. Then the assessee carried the dispute to the Tribunal. The Tribunal held that on facts it has not been established by the department that the Income-tax Officer who made the original assessment did not apply his mind to the admissibility of the expenses. This was so because the assessment was completed under Section 23(3) of the Act. The more fact that the Income-tax Officer did not discuss the details of the evidence would not show that he did not apply his mind to the question of admissibility of expenses. It is also found that the claim for expenses as well as the income were apparent and it cannot be said that the same was discovered by the successor Income-tax Officer subsequently because some material evidence came to his notice later on as the requisite facts were already in the possession of the Income-tax Officer when he completed the original assessment. On these findings the Tribunal came to the conclusion that it was merely a case of change of opinion by the successor officer and as such action under Section 147(b) was not legally valid.
3. At the instance of the Commissioner of Income-tax, the Tribunal has referred the following question of law for the opinion of this court :
' Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was right in law in holding that a mere change of opinion led to the reopening of the assessment for the assessment years 1959-60 and 1960-61 and that such change of opinion would not amount to information within the meaning of Section 147(b) of the Income-tax Act, 1961?'
4. The findings of fact that all requisite facts were known to the Income-tax Officer who made the original assessment and that he applied his mind to the admissibility of the expenses while completing the assessment under Section 23(3) of the Act are findings of fact on which it is clear that the successor Income-tax Officer made a fresh application of mind to the same problem on which his predecessor had also applied his mind and came to a different conclusion. In this view it is clearly a case of change of opinion on the basis of which the assessment was sought to be reopened. In the present case no appellate or higher authority had taken the view that these expenses were not admissible. It is evident that the successor Income-tax Officer himself after applying his mind afresh to the same problem came to a different conclusion. The conclusion reached as a result of fresh application of mind by the successor officer will not amount to information within the meaning of Clause (b) of Section 147 of the Act.
5. Learned counsel for the department invited our attention to Commissioner of Income-tax v. Rathinasabapathy Mudaliar : 51ITR204(Mad) . A Bench of the Madras High Court in this case found that while the Income-tax Officer was dealing with the original assessment of this assessee, the income derived by the minor son from the partnership was not before him. The fact that there were other connected proceedings under Section 25A or Section 26A or individual assessment proceedings of the minor before him cannot be taken to establish that this part of the income of the minor son was considered by the Income-tax Officer in making assessment upon the father. Factually, he did not consider this income. It was not in dispute that the return of the father did not display this income. It cannot be, therefore, said that the Income-tax Officer had come to a conclusion that the income of the son was not to be included and for that reason he left it out. The case is clearly distinguishable. In the present case the Income-tax Officer had considered the expenses claimed by the liquidator and had come to the conclusion that they were admissible. It is not a case where the relevant income or the expenses were not within the knowledge of the officer.
6. Our answer to the question referred to us is in the affirmative, in favour of the assessee and against the deparment. Since no one has appeared on behalf of the assessee there would be no order for costs. The fee of the counsel for the department is assessed at Rs. 200.