S.J. MUKHOPADHAYA, J.

(1.) All these writ petitions involving common point of law were filed by the same petitioner relating to the assessment of sales tax for different periods, i.e., 1987-88, 1988-89, 1989-90 and 1990-91. Thereby they are disposed of by common orders.

(2.) Eureka Forbes Ltd., petitioner, a limited company having its office at Patna, Ranchi, Jamshedpur, etc., is doing business of selling vacuum cleaner. Petitioner has challenged notices issued by the respondent-Deputy Commissioner of Commercial Taxes, Jamshedpur, under Section 19(1) read with Section 17(2) of the Bihar Finance Act, 1981 (annexure 1 series in respective writ petitions) ; orders of reassessment (annexure 2 series of respective writ petitions) and orders passed in revisional applications by the Commissioner of Commercial Taxes, Patna (annexure 3/1), by which the orders of reassessment have been upheld and the revision petitions have been dismissed.

(3.) The brief facts of the case are as follows : The assessments with regard to sale of vacuum cleaners for the aforesaid periods, i.e., 1987-88, 1988-89, 1989-90 and 1990-91 were made by the assessing authority treating the vacuum cleaners as "machinery", which was taxable at the rate of 8 per cent. On 6th of August, 1991, the Commissioner of Commercial Taxes, Patna, issued one order (annexure 4) in terms with Rule 7(10)(4) of the Bihar Sales Tax Rules, 1983, by which permission was granted to the petitioner to furnish consolidated return, with respect to business premises situated at Jamshedpur, Ranchi, Dhanbad and Muzaffarpur, at one place, namely, Pataliputra Circle, Patna. Earlier, to that, assessments for the aforesaid periods had already been made by the Jamshedpur Circle, Bihar.

(4.) It was under impugned notices issued on different dates in the year, 1993 (annexure 1 series), issued under Section 19(1) read with Section 17(2) of the Bihar Finance Act, 1981, the petitioner was asked by the respondent-Deputy Commissioner, Commercial Taxes, Jamshedpur as to why reassessment for the aforesaid periods be not done. The petitioner filed reply as contained in annexure 5, objecting the reassessments stating therein that the reassessments were not permissible, as it amounted to review of earlier assessment, merely on the basis of change of opinion and not on the basis of any information and/or other documents. Petitioner also challenged the jurisdiction of the respondent-Deputy Commissioner, Commercial Taxes, Jamshedpur. Thereafter the respondent-Deputy Commissioner, Commercial Taxes, Jamshedpur vide impugned orders passed in the year, 1994 as contained in annexure 2 series, while rejecting the reply of the petitioner reassessed the petitioner for the aforesaid periods. The petitioner thereafter filed petition for revision under Section 46(4) of the Bihar Finance Act, 1981, which has also been rejected by the respondent-Commissioner of Commercial Taxes, Patna vide orders as contained in annexure 3 series.

(5.) At this stage it is to be taken into note that the reassessments in these cases for the aforesaid period have been made by the respondent-Deputy Commissioner, Commercial Taxes, solely on the basis of an "audit report". In the State of Bihar, the respondent-State has levied tax at the rate of 8 per cent with regard to the "machineries" ; whereas 12 per cent of tax is levied with respect to "electrical goods". The vacuum cleaners, which were originally assessed at the rate of 8 per cent by the assessing authority, was so assessed treating the same as "machineries". Subsequently the audit party while submitting audit report, gave its opinion that the vacuum cleaners are "electrical goods" and for that the assessment should have been done at the rate of 12 per cent instead of 8 per cent, as has been done in the case of the petitioner. It was on the basis of such opinion of the audit party as mentioned in the audit report orders of reassessment have been passed, which have been confirmed by the revisional authority.

(6.) Counsel for the petitioner, Mr. L.N. Rastogi, Senior Advocate, has challenged the reassessment and thereby the impugned orders on different grounds, as enumerated below :

(i) Audit report cannot constitute an information, as enumerated under Section 19(1) of the Bihar Finance Act, 1981 and on that basis, no proceeding for reassessment can be initiated ; (ii) There is no new material on the record to make reassessment in terms with Section 19(1) of the Act aforesaid ; (iii) Mere change of opinion, as has been made by the audit party and/or by the Deputy Commissioner, Commercial Taxes, Jamshedpur, cannot be a basis for reassessment in terms with Section 19(1) of the aforesaid Act ; and (iv) After 6th of August, 1991 (issuance of annexure 4) the power relating to assessment having been vested with the Pataliputra Circle, Patna, respondent-Deputy Commissioner, Commercial Taxes, Jamshedpur had no jurisdiction for reassessment.

(7.) The first three points raised by the counsel for the petitioner are all related with Section 19(1) of the Bihar Finance Act, 1981. Counsel for the petitioner pointed out that it is the annual audit report on the basis of which reassessment has been made and there is no other document and/or information available with the respondents for reassessment with respect to the aforesaid period. According to the counsel, audit report cannot be stated to be a source of information and/or document for the purpose of such reassessment. Further it is submitted that whether the vacuum cleaner is a "machinery" and/or "electrical goods", the audit party had no business to give their opinion with respect to the same. It has been also contended by the counsel for the petitioner that on the basis of such change of opinion, no reassessment can be done.

(8.) Counsel for the petitioner relied on different decisions of this Court, other High Courts and that of the honourable Supreme Court, including [1984] 56 STC 273 [FB] (in the case of Bhimraj Madanlal v. State of Bihar), [1985] 58 STC 119 ( in the case of Bhimraj Madan Lal v. State of Bihar), [1988] 71 STC 293 ( in the case of Shree Bihariji Mills Ltd. v. State of Bihar) and AIR 1979 SC 1960 ; (1979) 4 SCC 248 ; [1979] 119 ITR 996 ( in the case of Indian and Eastern Newspaper Society v. Commissioner of Income-tax, New Delhi). With respect to other points it has been contended by the counsel for the petitioner that since 6th of August, 1991 when the power of assessment was vested with the Pataliputra Circle, Patna, the jurisdiction of respondent-Deputy Commissioner, Jamshedpur ceased and thereby the impugned orders cannot be sustained.

(9.) In this connection, the counsel for the petitioner relied on different decisions, including [1981] 47 STC 190 ( in the case of B.C. Malliah v. State of Karnataka), [1970] 26 STC 223 ( in the case of Commissioner of Sales Tax, Uttar Pradesh, Lucknow v. Kakaram Magharam). This other point relating to jurisdiction, I will deal at appropriate stage.

(10.) Learned Advocate-General appearing on behalf of the State on the other hand, contended that the audit report is itself was a sufficient document, which can be construed to be an information for reopening the assessment in terms with Section 19(1) of the Bihar Finance Act, 1981. He has relied upon the decisions reported in [1992] 198 ITR 692 (Ker) (in the case of Bharat Plywood and Timber Products Ltd. v. Commissioner of Income-tax) and [1990] 181 ITR 387 (Ker) [in the case of Teekoy Rubbers (India) Ltd. v. Commissioner of Income-tax]. He has also relied upon the case reported in [1979] 119 ITR 996 (SC) ; AIR 1979 SC 1960 (in the case of Indian and Eastern Newspaper Society v. Commissioner of Income-tax). Further it has been submitted by the Advocate-General that the vacuum cleaner is an "electrical goods" being a machinery fitted with motors, thereby the assessing authority should have assessed the petitioner for the aforesaid period with 12 per cent of tax, and for that it was rightly opined by the audit party that on wrong assumption that the same is a machinery, the petitioner was wrongly assessed with lesser tax at the rate of 8 per cent.

(11.) For proper appreciation of the case I may state that Section 19(1) of the Bihar Finance Act, 1981 is pari materia same and similar to that of the old Section 18(1) of the Bihar Sales Tax Act, 1959. Both of Section 18(1) of the Bihar Sales Tax Act, 1959 and Section 19(1) of the Bihar Finance Act, 1981 are extracted below : The Bihar Sales Tax Act, 1959 : Bihar Finance Act, 1981:

"18. Turnover of registered dealer escaping assessment. - (1) If upon information which has come into his possession, the prescribed authority is satisfied that reason- able grounds exist to believe that any turnover of a registered dealer in respect of any period has, for any reason, escaped assessment or any turnover of any such dealer or a dealer assessed under sub-section (5) of section 16 has been under-assessed or assessed at a rate lower than that which was correctly applicable or any deductions therefrom have been wrongly made, the pre- scribed authority may, subject to such rules as may be made by the State Government under this Act, and "19. Turnover of registered dealer escaping assessment, - (1) If upon infor- mation which has come into his possession, the prescribed authority is satisfied that reasonable grounds exist to believe that any turnover of a registered dealer or a dealer to whom grant of registration certificate has been refused under the third proviso to sub-section (2) of section 14, in respect of any period has, for any reason, escaped assessment or any turnover of any such dealer or a dealer assessed under sub-section (5) of section 17 has been under-assessed or assessed at a rate lower than that which was correctly applicable or any deductions therefrom has been wrongly made, the prescribed authority may, subject to such rules as may be made by the State Government under this part, and (a) ........................ (a) within eight years of the expiry of such period, where the said authority has reasons to believe that the dealer has concealed, omitted or failed to disclose wilfully the particulars of such turnover or has furnished incorrect particulars of such turnover and thereby returned figures below the real amount, (b) ........................ serve on the dealer a notice containing all or any of the requirements which may be included in a notice under subsection (2) of section 16 and proceed to assess or reassess, the amount of tax due from the dealer in respect of such turnover; and the provisions of this Acts hall, so far as may be, apply accordingly as if the notice under this subsection was a notice under sub-section (2) of section 16 ; (b) within six years of the expiry of such period in any other case, serve on the dealer a notice containing all or any of the requirements which may be included in a notice under sub-section (2) of section 17 and proceed to assess or reassess the amount of tax due from the dealer in respect of such turnover, and the provisions of this part shall, so far as may be, apply accordingly as if the notice under this sub-section was a notice under sub-section (2) of section 17 : Provided that the amount of tax shall be assessed or re-assessed after allowing such deductions as were permissible during the said period and at rates at which it would have been assessed had the turnover not escaped assessment or full assessment, as the case may be. Explanation. Production before the prescribed authority of accounts, registersor documents from which material facts could, with due diligence, have been discovered by the said authority, will not necessarily amount to full disclosure within the meaning of this section."

(12.) A Full Bench of this Court in the case of Bhimraj Madanlal [1984] 56 STC 273 took into note the old provisions of Section 18(1) of the Bihar Sales Tax Act, 1959, which is same and similar to new Section 19(1) of the Bihar Finance Act, 1981, Having compared with Section 18(1) of the Bihar Sales Tax Act, 1959 with that of Section 147 of the Income-tax Act, 1961, the Full Bench held that the word "information" in both the provisions of Section 18(1) of the Bihar Sales Tax Act, 1959 and Section 147 of the Income-tax Act, 1961 have same and similar meaning for the purpose of reassessment. The Full Bench categorically held that second thought or a mere change of opinion of the authority on the same set of facts and materials would not constitute information, for the purpose of reassessment under Section 18(1) of the old Bihar Sales Tax Act, 1959. Such finding of Full Bench is extracted below :

"19. To finally conclude-- (i) The answer to the question posed at the very outset is rendered in the negative and it is held that information envisaged by Section 18(1) of the Act for purposes of reassessment need not necessarily spring from a source external or extraneous to the original record. (ii) That having second thoughts or a mere change of opinion by the prescribed authority on the same set of facts and materials on the record would not constitute information under Section 18(1) of the Act for the purposes of reassessment. (iii) That with deference Satya Narainji Mills v. State of Bihar (C.W.J.C. No. 1400 of 1973 decided on 13th August, 1976--Patna High Court) does not lay down the law correctly and is hereby overruled,"

(13.) The matter relating to reopening of the assessment under the provisions of old Section 18(1) of the Bihar Sales Tax Act, 1959 was again discussed by a Bench of this Court in the case of Bhimraj Madan Lal [1985] 58 STC 119 , therein took into note the aforesaid Full Bench decision of this Court, the Division Bench held as follows :

"16. The word information contemplated under Section 18(1) of the Act is an information which is available from the external source after the passing of the assessment orders. No such information is available on the record. The Full Bench has held that the word information contemplates the information from the record as well. No such information is available from the record of the case."

(14.) I have already pointed out that the meaning of "information" as there is in the Income-tax Act held to be same by the Full Bench in the case of Bhimraj Madanlal [1984] 56 STC 273 (Pat) with respect to the word "information" mentioned in old Section 18(1) of the Bihar Sales Tax Act, 1959. I have already given the extract of the present Section 19(1) of the Bihar Finance Act, 1981, which is same and similar to Section 18(1) of the Bihar Sales Tax Act, 1959. Thereby it is clear that the word "information" enumerated in Section 19(1) of the Bihar Finance Act, 1981 is similar to the word "information" of the Income-tax Act. The honourable Supreme Court in the case of Indian and Eastern Newspaper Society [1979] 119 ITR 996 (SC) ; AIR 1979 SC 1960 ; (1979) 4 SCC 248 has held as follows :

"17. In Assistant Controller of Estate Duty v. Nawab Sir Mir Osman Ali Khan Bahadur [1969] 72 ITR 376 (SC), this Court held the opinion of the Central Board of Revenue as regards the correct valuation of securities for the purpose of estate duty to be information within the meaning of Section 59 of the Estate Duty Act, 1953, on the basis of which the Controller of Estate Duty was held entitled to entertain a reasonable belief that property assessed to estate duty had been under-valued. The circumstance that the opinion of the Board was rendered in an appeal filed before it under the Estate Duty Act against the assessment made by the Assistant Controller of Estate Duty was apparently not brought to the notice of this Court when it heard R.K. Malhotra, ITO v. Kasturbhai Lalbhai [1977] 109 ITR 537 (SC). The opinion of the Board represented its view as a quasi-judicial authority possessing jurisdiction to lay down the law. Although the Board did not enhance the valuation of the securities in the appellate proceeding because of the argument advanced by the appellant nonetheless its observations amounted to information as to the law. It was not a case where the Board was functioning as an extra-judicial authority, performing administrative or executive functions, and not competent or authorised to pronounce upon the law. The Delhi High Court in CIT v. H.H. Smt. Chand Kanwarji [ 1972] 84 ITR 584 held that the scrutiny note of revenue audit constituted information within the meaning of Section 147(b) of the Income-tax Act because the Comptroller and Auditor-General of India was empowered by statute to scrutinise the proceedings of the Income-tax Department and to point out defects and mistakes which adversely affected the revenue. The High Court considered that the view that information as to law could be gathered only from the decisions of judicial or quasi-judicial authorities was unduly restrictive. In CIT v. Kelukutty [1972] 85 ITR 102 , the Kerala High Court also regarded the note put up by audit as information within the meaning of Section 147(b) of the Act, but it appears to have assumed, without anything more, that an audit note would fall within that expression. As regards Vashist Bhargava v. Income-tax Officer [1975] 99 ITR 148 (Delhi), the information consisted in a note of the revenue audit and the Ministry of Law that the payment of interest by the assessee was in fact made to his own account in the provident fund and, therefore, in law the money paid did not vest in the Government and, consequently, the original assessment was erroneous in so far as it allowed the deduction of the interest as expenditure made by the assessee. The Delhi High Court upheld the reassessment on the finding that the note of the revenue audit and the Ministry of Law had to be taken into account by the Income-tax Officer, because in his executive capacity he had to be guided by the advice rendered by the Ministry of Law and he had to pay due regard to the note of the revenue audit because the officers of the audit department were experts empowered to examine and check upon the work of the Income-tax Officers. It seems to us that the considerations on which the Delhi High Court rested its judgment are not correct. But the decision of the case can be supported on the ground that the basic information warranting the reopening of the assessment was the fact that the payment of interest was made to the provident fund account of the assessee himself. That the money so paid did not vest in the Government was a conclusion which followed automatically upon that fact, and no controversy in law could possibly arise on that point. 18. On the considerations prevailing with us, we are of opinion that the view taken by the Delhi High Court and the Kerala High Court in the aforementioned cases is wrong and we must, with great respect, hold that this Court was in error in the conclusion reached by it in R.K. Malhotra, Income-tax Officer v. Kasturbhai Lalbhai [1977] 109 ITR 537 (SC)."

From the aforesaid finding of the Full Bench of this Court and division Bench of this Court ; and that of the honourable Supreme Court I can come to a definite conclusion and hold : (i) A mere change of opinion and/or second thought by any authority on the same set of facts and materials on record would not constitute "information" under Section 19(1) of the Bihar Finance Act, 1981 ; (ii) There must be some material and/or facts on the record which had not been taken into account at the time of original assessment, to make reassessment in terms with Section 19(1) of the Bihar Finance Act, 1981 ; and (iii) "Audit report" cannot constitute "an information", as enumerated under Section 19(1) of the Bihar Finance Act, 1981, for the purpose of reopening of assessment.

(15.) I may state that the cases cited by the Advocate-General as reported in [1992] 198 ITR 692 (Bharat Plywood and Timber Products Ltd. v. Commissioner of Income-tax) and [1990] 181 ITR 387 [Teekoy Rubbers (India) Ltd. v. Commissioner of Income-tax], both the aforesaid cases are that of the Kerala High Court, are of no avail to the respondent-State of Bihar, as no specific finding has been given therein by the Kerala High Court as to whether the audit report can constitute "information" or not, Further when Full Bench decision of the Patna High Court and the decision of the honourable Supreme Court gives specific meaning relating to "information" and "second thought of opinion", in that case, the decisions of the Kerala High Court aforesaid (Bharat Plywood and Timber Products Ltd. v. Commissioner of Income-tax [1992] 198 ITR 692) and [Teekoy Rubbers (India) Ltd. v. Commissioner of Income-tax [1990] 181 ITR 387] cannot make precedence over the same and thereby of no avail in the present case.

(16.) In this case it is an admitted fact that the sole document of reopening of assessment by the respondents is the audit report. Further the audit party merely gave its opinion as to whether the vacuum cleaner is a "machinery" and/or "electrical goods". For the said reason I hold that there is no information and/or new material that was available before the respondents to reopen the matter relating to the assessment for the period in question and further the audit report is mere a change and/or second opinion. The impugned notices as contained in annexure 1 series, the orders of reassessment as contained in annexure 2 series being based solely on the audit report are completely illegal. Accordingly they are set aside. The revisional orders as contained in annexure 3 series having confirmed the illegal orders of reassessment, they are also set aside.

(17.) Having decided the matter in favour of the petitioner there is no need to discuss the other points raised by the petitioner as to whether the respondent-Deputy Commissioner, Commercial Taxes, Jamshedpur had jurisdiction to reopen the assessment or not.

(18.) In the result, the writ petitions are allowed and the impugned orders as contained in annexures 1 series, 2 series and 3 series are quashed, but without any costs.