These four appeals filed by same assessee raise common point for decision. Hence, they are herd together and disposed of by this common order for sake of convenience. assessee is limited company who used to derive income from manufacture and sale of fire-bricks. Some time in 1971, debenture holders of assessee-company demanded payment of their loans and assessee could not pay. debenture holders filed suit against company claiming their dues. High Court appointed Receiver. factory of assessee was leased out by Receiver as going concern and assessee received only lease rent w.e.f. asst. yr. 1971-72 onwards. It appear that principal and interest due to debenture holders have not yet been fully paid up and so lease was being extended from time to time. As and when debentures would be fully paid up, Receiver would go out of picture and business assets will revert to assessee-company. This is background explained before us by Shri R. N. Bajoria, ld. Representative for assessee. common issue involved in these four appeals is whether lease rent received by assessee during four assessment year under consideration viz., 1976-77, 1977-78, 1978-79 and 1979-80 is assessable under head "business" or under head "other sources". For asst. yr. 1976-77, ITO made assessment under s. 143 (3). In this assessment, ITO stated that business of assessee was manufacture and sale of fire-bricks but business income was nil. He computed income from "other sources" at loss of Rs. 409. He specifically stated in that order that loss was to be carried forward to future years as if it is business loss. this assessment order was passed on 24th Feb., 1977. Subsequently, this order was rectified by order dt. 6th Sept., 1980 by which business loss computed was increased to Rs. 9.050. Even in this order ITO gave direction to carry forward this loss to future years on footing that loss arose from business carried on by assessee. Still later, on 27th Feb., 1982, ITO passed order under s. 154 on ground that loss of Rs. 9,050 determined by order dt. 6th Sept., 1980 was wrongly allowed to be carried forward. assessee objected to proposed rectification which culminated in order dt. 27th Feb., 1982 by its letter dt. 24th Feb., 1982 addressed to ITO. It is fount at p. 9 of assessee s compilation. In this letter assessee had objected to disallowance of carry forward of loss. It had claimed that loss determined arose out of business carried on by assessee and had given six cases of Supreme Court and different High Courts in support of its claim. ITO in his order dt. 27th Feb., 1982 states that assessee s contention is not acceptable because AAC in his order dt. 7th July, 1978 held that income is to be assessable under head 'other sources . Accordingly, ITO rectified alleged mistake and directed that loss determined shall not be carried forward. assessee appealed to CIT(A) who confirmed action of ITO on ground that loss determined was not business loss. Shri R. N. Bajoria, ld. Representative for assessee, contended before us that action of Revenue authorities was wrong. He stated that under similar set of circumstances and after due enquiry, ITO had accepted fact that lease-rent was obtained from exploitation of commercial assets of assessee-company and so it represented business income. This is stated in assessment order for asst. yr. 1972-73 at page 31 of assessee s compilation. Subsequently, same conclusion was arrived at year after year till asst. yr. 1975-76. In asst. yr. 1976-77, there was no further enquiry nor was there further facts which would warrant conclusion different from that arrived at in earlier (years). His point was that ITO rightly assessed loss as business loss and rightly gave direction to carry forward that determined loss. If there was no mistake, there was no question of rectifying same. According to Shri Bajoria, matter is now free from doubt because of authorities cited by assessee in its letter dt. 24th Feb., 1982 addressed to ITO. intention of assessee was only to exploit commercial assets in order to repay loans of debenture holders. intention never was to discontinue business altogether. stock of finished goods which was available on date of lease was subsequently sold. losses was manufacturing fire-bricks. assessee could not get assets back until debenture holders were fully paid up as per orders of High Court. Under theses circumstances, assessee s intention was to exploit its Court. Under theses circumstances, assessee s intention was to exploit its assets in different way, viz., instead of running business itself it allowed its assets to be worked for profit by another person in consideration of fixed amount. He urged that decision of ITO of contrary has not been supported by any authority and doubtful conclusion may perhaps be arrived at by ITO only after long-drawn debate and arguments. Such course of action is not permissible under s. 154 vide decision of Supreme Court in case of ITO vs. Volkart Brothers & Ors. (1971) 82 ITR 50 (SC). Shri Bajoria then took us through original assessment orders for subsequent three assessment years. In assessment order for 1977-78, ITO has stated heads as "business income" and then stated "other sources". He has invoked s. 140A(8) which applies only to business. Finally, he has arrived at "business loss". In assessment order for 1978-79, ITO has stated in same manner and has invoked not only s. 40A(8) but also has disallowed bad debt both of which are available only to income assessable under head 'business . In this order he has finally arrived at income which has been set off against loss brought forward from earlier year. balance loss of this year has also been directed in same order to be carried forward to future years. In assessment order for 1979-80, ITO has arrived at certain profit after invoking provisions of s. 40A(8) and has set off said income against loss brought forward from earlier year. Shri Bajoria urged that these actions of ITO in original assessment orders passed by him clearly show that he was treating income as business income just like in earlier years from 1972-73 to 1975-76 both inclusive. Shri bajoria next pointed out that in first year even though ITO gave direction in original assessment order to carry forward loss to future years as if it was business income, yet assessee filed appeal to AAC contending that in some part of assessment order ITO has erroneously stated that income was from 'other sources which is contradictory to his own statement made in other part of same assessment order. AAC, however, did not accept contentions of assessee. assessee then went to CIT under s. 264 of Act. CIT rejected claim of assessee without going into merits on ground that assessee had gone to Tribunal on another point and so he had no jurisdiction to consider claim of assessee. All that assessee was claiming before him was that mention of 'other sources in portion of order of ITO is erroneous and should be deleted as it is contradictory to express statement made in other parts of same order. Shri Bajoris explained that assessee did not deem it fair to go further because ITO had in fact allowed carry forward of loss determined by him and that fact served purpose of assessee. assessee merely claiming to remove certain technical defects in order to set record right and as that was not accepted without going into merits assessee did not deem it fair to pursue that matter any further as it did not lose anything. He pointed out that question before Tribunal was something different. Similarly, in asst. yr. 1977-78 also, assessee contested same matter before AAC. same position continued in subsequent year also. However, AAC did not accepts claim of assessee that correct head of income was "business" as had always been adopted in file of assessee. Since loss determined in earlier year was actually set off against income determined in these years, assessee did not see any point in proceeding further on technical point. assessee had already got what it had wanted and intention of assessee to continue business was clear just like intention of ITO to treat income of assessee as "business". Under circumstances, Shri Bajoria urged that there was no case for rectifying these orders under s. 154 to hold that income derived by assessee as lease rent was assessable under head other sources . Shri K. Subba Rao, ld. Representative for Department, on other hand, supported orders of Revenue authorities. He contended that assessee had missed bus before ITO as well as before CIT (A) inasmuch as it never claimed that income derived by it was from business. He pointed out that assessee had some finished goods at time of leasing out of its machinery and they were sold subsequently. Apart from above, there was no further business. assessee had accepted fact that income was assessable under head other sources because it failed in its appeals on that point and did not pursue matter further. He urged that mere fact that ITO accepted position in earlier years would not operate as res judicata against Department. IN view of these facts, he urged that orders of appellate authority, which is under scrutiny before us, deserved to be confirmed. We have considered contentions of both parties as well as facts on record. question that is raised in these appeals is as to whether there was any mistake in original orders passed by ITO. assessment orders say at beginning that business income was nil but ultimately orders say that loss is from business and is to be carried forward to future years or that income is such that it had to be set off against losses brought forward from earlier years. In our opinion, intention of ITO was clear, when he stated that loss determined had to be carried forward or income determined had to be set off against business loss brought forward from earlier years. In either case, ITO was evidently treating source of income as "business". This conclusion is further strengthened by fact that ITO invoked sections of Act that are applicable only to head business . In addition, Department had accepted in earlier years that income derived by assessee was business income and there has been no change in facts and circumstances during years under consideration. Apart from above, even from first principles income derived by assessee had to be assessed under head "business". intention of assessee was never to give up business as it had not gone into liquidation. All that assessee did was to exploit its commercial assets in different way. Formerly, assessee was using those assets to manufacture and sell goods. Subsequently, because of labour trouble and other difficulties, assessee decided to exploit those very assets through another person. Under circumstances, income derived by assessee as lease-rent out of leasing out those commercial assets had been rightly assessed as business income in original assessments. There are number of authorities in support of this proposition and they have been stated by assessee in its letter dt. 24th Feb., 1982 addressed to ITO. We may refer for our support only to one decision out of above viz. [CIT vs. Premchand Jute Mills Ltd. (1978) 114 ITR 769 (Cal). principle for determining head of income under which lease- rent has to be assessed has been laid down in that case. Applying this test to facts of present case, we find that there is evidence of exploiting of commercial assets. exploitation by person other than assessee was temporary and has been occasioned by order of Hon ble High Court in appointing Receiver. assets remained as commercial assets even in hands of lessee who exploited same as such. All facts and circumstances of case point to unmistakable fact that assessee did not intend to close down its business altogether. Hence, we come to conclusion that there was no mistake in original orders of assessment passed by ITO and so there was no question of rectifying same under s. 154 of Act. mere fact that assessee did not appeal in earlier years would not change above conclusion. In any case, assessee had explained reason for not taking matter further because that would be pointless since assessee had got what it had wanted. Again, it cannot be said that any of findings of CIT (A) in orders under consideration has become final because CIT under s. 264 has not considered matter on merit but has dismissed appeal of assessee on technical ground. Similarly Tribunal has also not considered issue because it was not before them. matter has not been settled against assessee in any of years. On contrary, as we have stated above, case is in favour of assessee because of authorities quoted above. Again, we find that orders of rectification passed by ITO were too cryptic and not speaking because he has not dealt with objection raised by assessee against proposed rectification. non-speaking order is not sustainable in law vide decision of Supreme Court in case of Sampat Tatyeda AIR 1974 SC 791. We also find force in contention that dubious conclusion in favour of he Department, on other hand, can be arrived at only by long-drawn out process of reasoning which is outside purview of s. 154 of Act. For above reasons, we cancel rectification orders for all four years under consideration. In result, four appeals are allowed. *** BALSUKH REFRACTORIES & CERAMICS LTD. v. INCOME TAX OFFICER