1. Since a common question arises in both these petition as to what is the true construction and effect of benevolent circulars issued by the Central Board Direct Taxes under s. 119 of the I.T. Act, 1961, in the matter of development rebate so as to overcome the difficulties experienced by the assessees pursuant to the decision of this court in Surat Textile Mills Ltd. v. CIT : 80ITR1(Guj) , we think it fit to dispose of both these petitions by this common judgment.
2. We may briefly state the relevant facts in these two petitions so as to appreciate the reliefs claimed by the respective petitioners.
3. In Special Civil Application No. 1959 of 1979, the petitioner company claimed development rebate at 15% for the assessment year 1972-73, in the sum of Rs. 2,76,140 by creating reserve of Rs. 1,24,908. The ITO, Ahmedabad, allowed development rebate of Rs. 1,66,285 only. The petitioner company, therefore, carried the matter in appeal before the AAC. In the course of hearing of the appeal the petitioner company claimed that it was entitled to claim development rebate at the rate of 25% and, therefore, it be permitted to create appropriate reserve accordingly which would have required it to constitute additional reserve accordingly which would have required it to constitute additional reserve of Rs. 82,197. The AAC by his order of December 27, 1973, remanded the matter foe recomputation according to the correct principles. The Department, therefore, went in appeal to the Appellate Tribunal. By the time the appeal to the Tribunal reached hearing, the Central Board of Direct Taxes issued a Circular bearing No. F. No. 10/49/65 II(AI) of October 14, 1965, explaining, inter alia, the position regarding the creation of statutory reserve for allowance of development rebate. Shortly stated, the position explained by the Circular was (a) that in cases of certain industrial undertakings having Government participation in equity capital, or enjoying the facility of loan or guarantee furnished by the Government, and which undertakings were under obligation by law or agreement about the maintenance of reserve of development purposes, the said reserve e should be deemed to include development rebate reserve through not specifically created as such; (b) in case where the total income before allowing development rebate is a loss, there would be no obligation top create statutory reserve in that year, and (c) where there was no deliberate contravention of the provisions of the I.T. Act, the ITO may condone genuine deficiency subject to the same being made good by the assessee by creating adequate additional reserve in the succeeding assessment year. This circular was subsequently withdrawn by the Board, vide its Circular No. 469 bearing reference No. 228/8/72/II, dated October 27, 1972. The 1972 circular directed that the development rebate may be allowed only if the reserve was created in conformity with the decision of the Supreme Court in the case of Indian Overseas Bank Ltd. v. CIT : 77ITR512(SC) and of this court in Surat Textile Mills' case : 80ITR1(Guj) , and ITOs were instructed to complete the pending assessments on the lines indicated in the 1972 circular and the past assessments be reviewed as may be feasible for rectification immediately, and appropriate stand accordingly be taken in pending appeals for securing necessary disallowance by way of enhancement, etc.
4. It appears that the Central Board of Direct Taxes issued another circular bearing No. 228/8/72, dated December 31, 1975, so as to clarify the position further as to what was the true effect of the decision of the Supreme Court in Indian Overseas Bank's case : 77ITR512(SC) and of this court in Surat Textile Mills' case : 80ITR1(Guj) . The Board clarified that in the light of the ratio of the said two decisions, the courts were concerned with the contingency referred to in part (a) as aforesaid and not with the position as stated in paras. (b) and (c). The Board explained the necessity for issuance of the 1972 circular. However, in view of the representation to the Board, it was pointed out that the decision of the Supreme Court as well as of this court pertained to the position as contained in part (a) only and there was no warrant to infer that the two decisions affected or changed prejudicially the position specified in paras. (b) and (c). The Board referred to the the two decisions of the Bombay High Court where rectificatory action taken by the Department in the light of the 1972 circular presuming that the position specified in paras. (b) and (c) was also affected by the aforesaid decisions of the Supreme court and this court (See Tata Iron and Steel Co. Ltd. v. N. C. Upadhyaya : 96ITR1(Bom) and Indian Oil Corporation v. S. Rajagopalan : 92ITR241(Bom) and explained the correct legal position. The Calcutta and Madras High Courts also followed the line of decision as rendered by the Bombay High Court in the aforesaid two decisions. In view of this conflicting legal position emerging as a result of the decisions of the Bombay, Calcutta and Madras High Courts on the one hand and the Gujarat High Court on the other, the light of the representations received by the Board from time to time on hardships causes by a misunderstanding of the partial suppression of the Board's earlier instructions of 1965, the whole issue was issue was referred to the Solicitor-General of India for his advice and in the light of the opinion of the Solicitor-General, the Board issued certain directions as contained in the said circular of December 31, 1975. Shortly stated, the directions were to the effect that the position stated in paras. (b) and (c) above was not affected by the decision of the Supreme Court to by the decision of the Gujarat High Court and, therefore, all the completed assessments accordingly need not be disturbed. Secondly, reassessment proceedings initiated under s. 147(b) or s. 154 or s. 263 of the I.T. Act, 1961, be dropped. Thirdly, in appeals from such reassessment order, the point may be conceded by the Revenue that the position specified in parts (b) and (c) remains unaffected. Fourthly, all assessments pending finalisation involving issues covered by parts (b) and (c) to be completed as if the circular of 1965 on third point had not been superseded.
5. It should be recalled at this stage that the aforesaid appeal of the Department reached for final hearing before the Tribunal somewhere in May, 1975, and by its order of May, 31, 1975, the appeal of the Department was allowed in view of the decision of this court in Surat Textile Mills' case : 80ITR1(Guj) . It appears that the Board issued yet another circular bearing reference No. 228/8/72, dated January 30, 1976, reiterating the position as clarified in December, 1975 circular. It further appears that the petitioner company represented to the Central Board of Direct Taxes by their latter of October 6, 1977, claiming development rebate. Unfortunately, however, the Board rejected this representation by its letter of December 29, 1977. The petitioner, therefore, again by their letter of February 9, 1978, wrote to the ITO claiming necessary reliefs in the matter of development rebate under s. 154 of the I.T. Act in view of the circulars of December, 1975, and January, 1976. The ITO, however, by his order of August 5, 1978, rejected this application for rectification. The assessee company, therefore, carried the matter again in appeal to the Commissioner of Income-tax (Appeals) which is still pending before the Commissioner. The petitioner company, however, has moved this court for appropriate writs, orders and directions for quashing and setting a the order of the ITO refusing rectification of the order date July 25, 1975, by his order dated August 5, 1978, and for directions enjoining the respondents to allow the full development rebate of Rs. 2,75,410.
6. In Special Civil Application No. 3637 of 1979, the petitioner company made a claim for development rebate of Rs. 56,548 in the assessment year 1968-69 at 20% on machinery valued at Rs. 2,82,739. It appears that before the assessment could be finalised, the petitioner company advanced a claim for development rebate at a higher rate of 35% since it claimed itself to be a priority industry. The ITO disallowed this claim since appropriate reserve was not provided for. The assessee company, therefore, carried the matter before the AAC, who by his order of July 29, 1972, held that if the assessee provided the reserve in the current year's books, i.e., accounting year 1971-72, development rebate should be granted at the rate of 35%. The Department, being aggrieved by this order of the AAC went in appeal to the Appellate Tribunal, which reversed the order of the AAC, by its order of March 28, 1974, following the decision of this court in Surat Textile Mills' case : 80ITR1(Guj) . The petitioner company, some three years thereafter by their application of September 4, 1977, approached the Central Board of Direct Texes for directions to the ITO to grant rebate according to the correct principles. The Board by its letter of March 14, 1978, informed the petitioner company that the matter was under consideration. However, ultimately by its letter of April 3, 1979, the Board expressed its inability in the matter. The petitioner again by its application of July 3, 1979, moved the Commissioner of Income-tax to grant rebate. Meanwhile, it appears that the Board issued still one more circular bearing Reference No. 259 of July 11, 1979, addressed to all Commissioners of Income-tax. It is necessary to refer to the relevant part of this circular which is material for the purposes of these two petitions. It is contained in para. 3 which reads as under :
'3. After considering various aspects of the matter, the Board have decided that the requirements of the provisions of sections 33 and 34(3)(a) of the Act will be considered to have been satisfied if the accumulated reserve in respect of the said machinery or plant up to the year or years of actual allowance is equal to 75 per cent. of the amount of development rebate to be actually allowed. This would mean that the condition for creation of requisite reserve would stand satisfied if the sum total of the reserve created either in the year of installation or use or in the subsequent year or years is equal to the requisite amount of 75 per cent. of the actual allowance of development rebate in any year or years.
4. Necessary instructions may be issued to the Income-tax Officers to complete the pending assessments on the lines indicated above. Past assessments should also be reviewed and the above-noted stand be taken in the pending appeals.'
7. The Commissioner of Income-tax in spite of the above circular expressed his inability to help the assessee and intimated accordingly, vide his letter of August 21, 1979. The petitioner company has, therefore, moved this court for appropriate writs, orders and directions enjoining the respondents to grant full development rebate of Rs. 97,941 and such other reliefs as may be thought fit in the circumstances.
8. No reply affidavit has been filed on behalf of the respondents in response to the nisi issued by this court.
9. A matter which, on close scrutiny, is simple enough has been made complicated particularly on account of the ill-conceived action by the petitioner company from time to time and particularly by failure on the part of the taxing authorities of income-tax to appreciate in proper perspective the liberal approach on the part of the Government of India in the matter of grant of development rebate. Before we address ourselves to the question raised in these petitions, it would be profitable to briefly advert to the settled legal position in the matter of beneficial circulars and the directions issued by the Central Board of Direct Taxes in exercise of its directions issued by the Central Board of Direct Taxes in exercise of its statutory power under s. 119 of the I.T. Act, 1961.
10. In Navnit Lal C. Javeri v. K. K. Sen AAC, : 56ITR198(SC) , a question arose about the binding effect of circulars issued by the Central Board of Revenue in the context of the deeming provision treating the loans taken by shareholders from a company in which public is not sub-stantially interested as dividends under s. 2(6A)(e) of the 1922 Act. The majority court, speaking through Gajendragadkar C.J. (as he then was), held that the circulars issued by the Central Board of Revenue would be binding on all officers and persons employed in the execution of the I.T. Act under s. 5(8) of the 1922 Act. In Navnit Lal C. Javeri's case : 56ITR198(SC) , it should be recalled that the Central Board of Revenue was required to issue a circular in pursuance of an assurance given by the Minister for Revenue and Civil Expenditure on the floor of Parliament, that s. 2 was amended so as to bring within the mischief of the definition of 'dividend' the loans advanced to the shareholders of company. The assurance was to the effect that the advances which were otherwise liable to be taxed as dividend in the assessment year 1955-56 would not be subjected to tax, if it is shown that they had been genuinely refunded to the company before June 30, 1955. A circular was, therefore, issued on May 10, 1955, to obviate the extreme hardships flowing from the operation of s. 12(1B) which would have covered the aggregate of all outstanding loans of past years resulting in imposition of unreasonable high liability on the respective shareholders. The Central Board of Revenue directed the ITO that they may intimate to all the companies that if the loans are repaid before June 30, 1955, in a genuine manner, they may not be taken into consideration in determining the tax liability of shareholders. In other words, the past transactions were substantially granted exemption from the operation of section 12(1B). These circulars were held to be binding on the taxing authorities, though technically there was an infraction of law, inasmuch as s. 12(1B) read with s. 2(6A)(e) would be violated. This decision in Navnit Lal C. Javeri's case : 56ITR198(SC) was followed by the Supreme Court in the later decision in Ellerman Lines Ltd. v. CIT : 82ITR913(SC) , where the effect of the instructions issued by the Central Board of Direct Taxes under s. 5(B) of the 1922 Act was again considered. Negativing the contention advanced of behalf of the Revenue that the instructions issued by the Board of Revenue could not have any binding effect and such instructions could not abrogate or modify the provisions of the Act, the court referred to the earlier decision in Navnit Lal C. Javeri's case : 56ITR198(SC) , and observed that the directions given in the circular in Navnit Lal C. Javeri's case clearly deviated from the provisions of the Act, and yet the court held that the circular was binding on the ITOs.
11. A Division Bench of this court comprising of Diwan C.J., (as he then was), and Majmudar J. in Rajan Ramkrishna v. CWT : 127ITR1(Guj) has ruled, following the aforesaid two decisions of the Supreme Court, that benevolent circulars are binding on all ITOs and all the persons employed in the execution of the W.T. Act, 1957, even if the circulars deviate from the legal position.
12. In Laxmichand Hirjibhai v. CIT  128 ITR 747, the very same Division Bench has held that benevolent circulars issued by the Central Board of Direct Taxes, even if they deviate from the legal position, are required to be followed by the ITO since the circulars would go to the assistance of the assessee.
13. In Chokshi Metal Refinery v. CIT : 107ITR63(Guj) , another Division Bench of this court consisting of B. J. Diwan C.J. and myself held in context of relief under s. 84 or s. 80J that having regard to the circular of the Central Board of Revenue issued in June, 1955, and the decision of the Supreme Court in Navnit Lal C. Javeri's case : 56ITR198(SC) , although at the time of the original assesments, the assessee-firm itself did not claim relief under s. 84/80J and though the responsibility for claiming refund and reliefs rested with the assessee, the ITO should have drawn the attention of the assessees to this relief under section 84/80J to which the assessee appeared to be clearly entitled but which the assessee had omitted to claim.
14. It is in the context of this settled legal position that we have to decide as to whether the respective petitioners are entitled to the relief which they have prayed for in the respective petitions.
15. On behalf of the petitioners, it has been urged that the income-tax authorities were under an obligation to grant development rebate, if they found that the case of the petitioners was covered by the position specified in part (c) of December, 1975 circular. In other words, it was contended that the ITO was under an obligation to condone genuine deficiency subject to the same being made good by the assessee through creation of adequate additional reserve in the current year's books in which the assessment is framed granting appropriate development rebate. The learned advocate for the petitioners invited our attention to the fact that according to the directions contained in para. 4(iv) of December, 1975 circular, all assessments pending finalisation involving issues covered by parts (b) and (c) of the said resolution as set out above had to be regulated as if the circular of 1965 on these points had not been superseded. Our attention has been further drawn by the learned advocate for the petitioners that the last circular on the topic was Circular No. 259 of July 11, 1979, which was addressed to all Commissioners of Income-tax by the Central Board of Direct Taxes in the matter of allowance of development rebate and creation of reserve under s. 34 of the I.T. Act, 1961. Our attention has been pointedly drawn to the directions contained in parts 3 and 4 of the said circular which we have set out above. The Commissioners have been directed to issue necessary instructions to the ITOs not only to complete the pending assessments on the lines indicated above but also to review the past assesments and appropriate stand according to the directions contained in para. 3 be taken in pending appeals. The learned advocate, therefore, submitted that the cumulative effect of a conjoint reading of these circulars is, inter alia, to review the past assessments also. Therefore, he submitted that this is not merely reiteration of the directions given in the circular of December, 1975. He recapitulated those directions as broadly enjoining the ITOs, firstly, not to distrub the completed assessments which had not been reopened. Secondly, the assessments which have been reopened for recovering the loss of revenue were to be dropped. Thirdly, the Revenue was to concede the right of the assessee to claim development rebate in appeal carried from reassessment orders, and fourthly, in pending assessments, the matter is to be regulated as if the circular of 1965 was effective for all intents and purposes.
16. On the other hand, on behalf of the Revenue, the learned counsel contended that so far as the reliefs in Special Civil Application No. 1959 of 1979 are concerned, the ITO could not have rectified the assessment order which he has already made under s. 154 in the light of the decision of the Tribunal. In any case, the application before the ITO was misconceived inasmuch as the order of assessment of the ITO had merged into the Tribunal's order. He also objected to this court exercising the jurisdiction since there was inordinate delay on the part of the petitioners to move this court for seeking the reliefs as prayed for, inasmuch as the petitioners have failed to invoke the jurisdiction of this court immediately after December, 1975, or for that matter July, 1979, circulars of the Central Board of Direct Taxes.
17. We are of the opinion that both these petitions should be allowed obviously for the following reasons : In the first place, in view of the settled legal position about the binding effect of the beneficial of the Central Board of Direct Taxes in issuing the circulars in exercise of its statutory powers was that the claim of the assessee for development rebate should not be defeated, if there stated in part (c) of December, 1975 circular is unequivocal and the operative part of the circular where the directions have been issued by the Board clearly enjoining the ITOs in the matter of assessments pending finalisation where the position, inter alia, as specified in part (c) of the said circular was involved, to finalise the assessments, as if the 1965 circular was for all intents and purpose in force. In other words, in assessments pending finalisation, if the ITO was of the opinion that the assessee has not claimed correctly the development rebate as a result rebate according to the correct principles by putting the assessee to the condition to remove the deficiencies in the current year. An attempt was made on behalf of the Revenue to persuade us that having regard to the directions contained in the December, 1975 circular where the assessments had become final and complete, there was no direction to reopen them. We do see some force in it, but it would not be open to the Revenue to advance this contention particularly after July, 1979 circular. To recall, the July, 1979 circular clearly directed the ITOs to review past assessments. The authorities were, therefore, under an obligation, in our opinion, after July, 1979 circular not only to complete the pending assessments on the lines indicated in the circular but also to review the past assessments, and to take the appropriate stand according to the said circular in pending appeals. If, therefore, any direction was wanting in the December, 1975 circular, as contended by the Revenue, that lacuna has been completely filed in by last circular of July, 1979. It is, therefore, obligatory, in our opinion, on the part of the income-tax authorities even where the assessments have become final and complete, to review them. The authorities can review the past assessments only by reopening them. The authorities can review the past assessments only by reopening them either under s. 147 or s. 154 or s. 263. It is in the light of this circular, therefore, that the petitioner-company in Special Civil Application No. 1959 of 1979 made an application of February 9, 1978, to the ITO claiming necessary relief in the matter of seeking rectification of the final order of assessment which the ITO has passed on July 25, 1975, adjusting the assessment according to the order of the Tribunal dated May 31, 1975, allowing the appeal of Revenue. It is axiomatic to say that the real nature of the proceedings for rectification of assessment to tax are in effect and substance proceedings for assessment (see Sankappa v. ITO  68 ITR). If, therefore, the ITO was moved as was done by the petitioner of Spl. Civil Appln. No. 1959 of 1979 by its application of February 9, 1978, to rectify the assessment proceedings, the ITO could not have refused to do so since the circular of July, 1979, issued by the Board in exercise of its statutory power under s. 119 was binding upon him and he was under a duty and obligation to frame assessment according to the directions contained in the said circular read with the earlier circular of December, 1975. The ITO was, therefore, clearly in error and has failed to exercise his jurisdiction which he was under an obligation to exercise in the light of the binding directions contained in the July, 1979 circular to review past assessments. The ITO committed an error in refusing to exercise the jurisdiction by holding that since the question was concluded by the order of the Tribunal dated May 31, 1975, he was precluded from exercising the rectification jurisdiction. It should be recalled that the Tribunal was right in passing the order as it did on May 31, 1975, since at that time what ruled in the field was the circular 1972 under which it was erroneously assumed that the position specified in paras (b) and (c) above had also been altered as a result of the withdrawal of the 1965 circular. The Tribunal was, therefore, right as the position then stood at that time, but having regard to the December, 1975 circular and July, 1979 circular, the position had been clarified and the income-tax authorities were under an obligation to grant development rebate, inter alia, in the light of the position as specified in part (c) above by reopening the past assessments also which have become complete and final. In so far as the ITO has failed to exercise that jurisdiction, the petitioner is entitled to move this court. It should be recalled that the application moved by the petitioner company praying for rectification of assessment on February 9, 1978, was clearly within the time prescribed for rectification under law inasmuch as the ITO had adjusted the assessment by order of July 25, 1975, in the light of the order of the Tribunal, dated May 31, 1975. It should be noted that the petitioner company has averred in this petition that the necessary deficiencies have been made good by creation of adequate additional reserve in the year subsequent to the year of assessment in question. We are, therefore, of the opinion that the petitioner in Special Civil Application No. 1959 of 1979 is entitled to pray for a writ of certiorari for quashing and setting aside the impugned order of the ITO dated August 5, 1978, and for a writ of mandamus enjoining him to review the assessment of the petitioner company as directed by the circular of July, 1979, by exercising his rectification jurisdiction under s. 154 of the I.T. Act, 1961, and to regulate the assessment as if the Circular of 1965 on the point of grant of development rebate has not been superseded and to condone the genuine deficiency subject to the same being made good by the assessee through creation of adequate additional reserve in any of the later years as directed by the Board in the relevant circulars, particularly of December. 1975. Rule is made accordingly in this Special Civil Application No. 1959 of 1979.
18. For the very same reasons in Special Civil Application No. 3637 of 1979, the Commissioner of Income-tax, was moved by the petitioner company in this special civil application, by its application of July 3, 1979, to grant development rebate according to the correct principles. The Central Board of Direct Taxes issued the last circular, as stated above, on the subject on July 25, 1979. This circular was addressed to all the Commissioner asking them, inter alia, to issue necessary to the ITO to complete the pending assessments on the lines indicated in the said circular. The Commissioners have also been directed that the past assessment should also be reviewed and appropriate stand be taken in the pending appeals conceding the right of the assessees to claim development rebate. The Commissioner, therefore, himself was under an obligation to exercise his revisional jurisdiction by reviewing the past assessment or asking in the alternative, the ITO to rectify the proceedings. In that view of the matter, therefore, the decision of the Commissioner of Income-tax expressing his inability to grant the relief to the petitioner company as conveyed, vide his letter of August 21, 1979, clearly constituted a failure to exercise the jurisdiction since by that time the last circular of July, 1979, had already issued by the Board directing the Commissioners to review the past assessments. Accordingly, a writ of mandamus must go to the Commissioner enjoining him to grant the development rebate on conditions as may be thought fit in the matter on making the deficiencies good, though it must be stated that the petitioner company had, as averred in the petition, made good those deficiencies in the years subsequent to the year of assessment in question. We do not think that the contention urged by the learned counsel for the Revenue can be successfully pressed into service in the view of the matter which we are taking that there is no question of upsetting the order of the Tribunal or the question of merger of the order of the ITO in that of the Tribunal since the central Board of Direct Taxes in exercise of its statutory powers issued directions to grant development rebate in matter where on account of genuine deficiencies the conditions are not satisfied for being qualified for claimimg the development rebate and even in matters of past assessments, they should be reviewed. In that view of the matter, therefore, the first and second contentions which have been urged on behalf of the Revenue are of no assistance to the cause of the Revenue. There is no question of delay since the petitioners in both these petitions have moved this court immediately after the impugned orders.
19. In that view of the matter, therefore, both these petitions must be allowed and the rule in each of these petitions is made absolute accordingly as stated hereinabove with no order as costs having regard to the facts and circumstances of the case.