Per Riyaz S. Padvekar, Judicial Member: assessee has filed this appeal challenging order of Commissioner of Income-tax (Appeals)-IV, Kochi, dated 22-3-2004 for assessment year 1979-80. 2. assessee has filed following grounds in revised form:- ' 1. CIT(A), in facts and circumstances of case, erred in holding that re-opening of assessment for assessment year 1979-80 under section 147 read with section 150(1) of Income-tax Act is valid and is not hit by section 150(2) of Income-tax Act, 1961. 2. CIT(A) erred in holding that reassessment made under section 143(3) read with section 147 and section 150(1) is valid. 3. CIT(A) ought to have noted that notice issued under section 148 is thoroughly hit by section 150(2) of Income-tax Act.' 2A.The briefly stated facts are as under: For assessment year 1979-80, assessment of assessee was completed originally under section 143(3) vide order dated 30-1-1980. There was controversy in respect of issue relating to power charges amounting to Rs. 5,58,598. assessee had offered said amount in its income in assessment year 1979-80. While completing assessment for assessment year 1977-78, Assessing Officer included that amount of power charges in said year as according to Assessing Officer, said amount was liable to be taxed in assessment year 1977-78. As amount was included in assessment year 1977-78, amount declared by assessee in income for assessment year 1979- 80 was excluded by Assessing Officer. As far as assessment year 1977- 78 was concerned, assessee carried matter in appeal before CIT (Appeals) who confirmed order of Assessing Officer. assessee carried matter further before ITAT and by way of reference to High Court. Hon'ble Jurisdictional High Court vide judgment dated 22-5-1998 in ITR No. 86 of 1984 held that amount of power charges of Rs. 5,58,598 cannot be brought to tax in assessment for assessment year 1977-78. After judgment of Hon'ble High Court in reference, Assessing Officer initiated proceedings under section 147 in respect of assessment year 1979-80 read with section 115 of Income-tax Act and issued notice under section 148 to assessee on 24-7-1998. assessee filed return but at same time, objected to reopening of assessment under section 147. Assessing Officer rejected objections raised by assessee and completed assessment by including amount of refund of power charges amounting to Rs. 5,58,598 which was earlier offered by assessee, but excluded by Assessing Officer. 3. assessee challenged impugned order of Assessing Officer before CIT (Appeals). Before CIT (Appeals), assessee kly objected issue of notice under section 148 and relied on decisions in case of Sukhdayal Pahwa v. CIT [1983] 140 ITR 206 (MP) and Vaikundam Rubber Co. Ltd. 200 (1) KLT 134. contention of assessee that there is no finding given by High Court in judgment in respect of assessability of said amount was not accepted by CIT (Appeals). Now assessee has carried matter in appeal before us. 4. We have heard parties. ld. counsel for assessee reiterated arguments which were advanced before CIT (Appeals). In addition to that, ld. counsel also relied on following precedents:- (i) Travancore Chemical & Mfg. Co. Ltd. v. CIT [1999] 237 ITR 821 (Ker.). (ii)K.M. Sharma v. ITO [2002] 254 ITR 772 (SC). (iii)Palakkad Shadi Mahal Trust v. Asstt. CIT [IT Appeal Nos. 991 to 998 (Coch.) of 2005, dated 28-4-2006] (ITAT Cochin Bench). 5.Per contra, ld. Departmental Representative submitted that in assessee's own case for assessment year 1977-78, Hon'ble Jurisdictional High Court has held that said amount was not taxable in assessment year 1977-78. It is further argued that there was specific finding in judgment of Hon'ble High Court and hence by virtue of provisions of section 150(1) of Act, time-limit prescribed under section 149 is not applicable to case of assessee. ld. DR further submitted that section 150(1) is having overriding effect over section 149 of Act and if there is any finding or decision then there is power vested in Assessing Officer to initiate assessment or re-assessment proceedings under section 147. ld. DR supported order of CIT(A). 6. We have heard rival submissions of parties. We have also carefully considered facts of this case. controversy before us is limited. assessee has offered refund of power charges as its income while filing return for assessment year 1979-80. Assessing Officer was of opinion that said amount was taxable in assessment year 1977-78. Hence, amount of refund of power charges included by assessee in its income for assessment year 1979-80 was excluded. assessee contested matter up to High Court and Hon'ble High Court of Kerala in Travancore Chemical & Mfg. Co. Ltd.'s case (supra) reframed following three questions for its opinion:- ' 1. Was Appellate Tribunal justified in holding that amount of Rs. 5,58,697 received by assessee by way of refund of electricity charges in subsequent year is taxable in year under consideration under section 41(1) of Income-tax Act, 1961? 2. Was Appellate Tribunal justified in its view that Supreme Court decision rendered during accounting period relevant to assessment year under consideration created vested right in assessee to claim refund and as per system of accounting followed by assessee make amount received in subsequent year would become taxable in year under consideration? 3. Was Appellate Tribunal justified in its interpretation of word 'obtained' in section 41(1) of Act is to be understood as 'capable of being obtained'? Is not said interpretation contrary to plain meaning of word and various decisions of court? Was Appellate Tribunal justified in relying on Motilal Ambaidas v. CIT [1977] 108 ITR 136 (Guj.) overruled in CIT v. Bharath Iron and Steel Industries [1993] 199 ITR 67 (Guj.) (FB), in support of above view?' After exhaustively dealing with relevant facts as well as case law on subject including decision of Hon'ble Supreme Court in case of CIT v. Moon Mills Ltd. [1966] 59 ITR 574 (SC), it was held as under:- ' By applying above principle, we are of view that term 'obtained' used in sub-section (1) of section 41 of Income-tax Act, 1961, cannot be given meaning 'capable of being obtained'. This is view taken by Full Bench of Gujarat High Court in CIT v. Bharat Iron and Steel Industries Ltd. [1993] 199 ITR 67. While considering provisions under section 41(1), system of accounting followed by assessee is of no relevance or consequence. As mentioned earlier, even though, assessee had put forward claim for refund of Rs. 8,50,282, what has been ultimately refunded was only Rs. 5,58,597. This would also show that quantification was not done simultaneously along with judgment of Supreme Court rendered on 21- 11-1975. quantification was done only in August, 1978. Therefore, we are of view that amount received as refund of electricity charges cannot be added back to total income of assessee during year 1977-78.' This Tribunal gave effect to judgment of Hon'ble High Court of Kerala by passing order under section 260(1) of Act. Subsequently, Assessing Officer issued notice to assessee under section 148 for assessment year 1979-80. Though assessee objected by taking contention that time-limit prescribed under section 149 was over and Assessing Officer has no jurisdiction to issue notice under section 149. ld. counsel submitted that section 147 is machinery provision and section 149 regulates time-limit for issuing notice under section 148. It is further argued that once time-limit is over for any reason, except as provided in section 150(1), Assessing Officer has no power to issue notice under section 148. It is argued that as far as section 149 is concerned, maximum time-limit is six years which is applicable when notice under section 148 was issued by Assessing Officer. He further submitted that though section 150 is having over riding effect, it removes barriers of limitation on Assessing Officer to issue notice under section 148 only for limited purpose if there is any specific finding or direction contained in order passed by any authority in any proceedings under Income-tax Act or under any other law, but crux of matter is that direction or finding should be specific. ld. counsel also referred to judgment of Hon'ble High Court in assessee's own case in Travancore Chemical & Mfg. Co. Ltd. (supra) and submitted that there is no finding given by Hon'ble High Court that this amount is assessable in assessment year 1979-80. He further argued that even prior to 1-4-1989, when assessment of assessee is completed under section 143(3) and if there is no failure on part of assessee to disclose particulars of his income, then after four years no action can be taken by Assessing Officer under section 147. ld. counsel also referred to judgment of Hon'ble Supreme Court in case of K.M. Sharma (supra). 7. There is substance in contention of ld. counsel. On careful perusal of judgment of Hon'ble Jurisdictional High Court in assessee's own case in reference reported in Travancore Chemical & Mfg. Co. Ltd. (supra), no finding is given that said amount is assessable in assessment year 1979-80. There is no dispute that provisions of section 149 by way of limitation put bar on jurisdiction of Assessing Officer to issue notice under section 148. Except as provided in section 150(1), Assessing Officer cannot issue notice once time-limit prescribed under section 149 is over. Section 150 reads as under:- ' 150.(1) Notwithstanding anything contained in section 149, notice under section 148 may be issued at any time for purpose of making assessment or reassessment or recomputation in consequence of or to give effect to any finding or direction contained in order passed by any authority in any proceeding under this Act by way of appeal, reference or revision or by Court in any proceeding under any other law. (2) provisions of sub-section (1) shall not apply in any case where any such assessment, reassessment or recomputation as is referred to in that sub- section relates to assessment year in respect of which assessment, reassessment or recomputation could not have been made at time order which was subject-matter of appeal, reference or revision, as case may be, was made by reason of any other provision limiting time within which any action for assessment, reassessment or recomputation may be taken.' It is clear from language used by Legislature that provisions of section 149 in respect of period for issue of notice under section 148 are applicable only in case where any finding or direction is contained in order passed by any authority in any proceedings under Income-tax Act or any other law and to give effect or in consequence of said finding or direction Assessing Officer can issue notice under section 148. As we have already stated, there is no specific finding or direction by Hon'ble High Court of Kerala that said amount is taxable in assessment year 1979-80. 8. In case of K.M. Sharma (supra), Hon'ble Supreme Court has incorporated scope of provisions of section 150 in context of sub-section (2) of section 150 and held as under:- ' We do not find above reasoning of High Court is sound. plain language of sub-section (2) of section 150 clearly restricts application of sub- section (1) to enable authority to reopen assessments which have not already become final on expiry of prescribed period of limitation under section 149. As is sought to be done by High Court, sub-section (2) of section 150 cannot be held applicable only to reassessments based on orders 'in proceedings under Act' and not to orders of court 'in proceedings under any other law'. Such interpretation would make whole provision under section 150 discriminatory in its application to assessments sought to be reopened on basis of orders under Income-tax Act and other assessments proposed t o be reopened on basis of orders under any other law. interpretation, which creates such unjust and discriminatory situation, has to be avoided. We do not find that sub-section (2) of section 150 has that result. Sub-section (2) intends to insulate all proceedings of assessments, which have attained finality due to then existing bar of limitation. To achieve desired result it was not necessary to make any amendment in sub-section (2) corresponding to sub- section (1), as is reasoning adopted by High Court. Sub-section (2) aims at putting embargo on reopening assessments, which have attained finality on expiry of prescribed period of limitation. Sub-section (2) in putting such embargo refers to whole of sub-section (1) meaning thereby to insulate all assessments, which have become final and may have been found liable to reassessments or re-computation either on basis o f orders in proceedings under Act or orders of courts passed under any other law. High Court, therefore, was in error in not reading whole of amended sub-section (1) into sub-section (2) and coming to conclusion that reassessment proposed on basis of order of court in proceedings under Land Acquisition Act could be commenced even though original assessments for relevant years in question have attained finality on expiry of period of limitation under section 149 of Act. On combined reading of sub-section (1) as amended with effect from 1-4-1989, and sub- section (2) of section 150 as it stands, in our view, fair and just interpretation would be that authority under Act has been empowered only to re-open assessments, which have not already been closed and attained finality due to operation of bar of limitation under section 149.' 9.In this case also, as far as assessment year 1979-80 is concerned, in our opinion, as original assessment was completed under section 143(3), proviso to section 147 is applicable and maximum time-limit was four years, Assessing Officer cannot take shelter of section 150(1) of Act to initiate reassessment proceedings. We have already held that there is no specific finding or direction in judgment of Hon'ble High Court of Kerala in assessee's own case cited supra. In our considered opinion, notice issued by Assessing Officer under section 148 is illegal and without due authority of law. We, therefore, cancel assessment proceedings and set aside order of CIT (Appeals). 10. In result, assessee's appeal is allowed. *** TCM LTD. v. JOINT COMMISSIONER OF INCOME TAX