ORDER In this application the petitioner Union Carbide India Ltd. challenges two noticed both dated the 11th March, 1976 under S.148 of the Income Tax Act. 1961 seeking to reopen the assessment for the assessment years 1971-72 and 1972-73. In spite of request the Income Tax Officer concerned did not furnish the recorded reasons in support of the aforesaid two notice. However on the 8th March, 1977 the petitioner received a draft order under S.144B-1) of the Act for the assessment years 1971-72. The draft order which starts at page 111 of the annexures contains the following statement in justification of the proposed reopening of the assessment for that year :- "Subsequent to the original assessment, I have received information through revenue audit objections that the 'Chemex' Unit relating to chemicals cannot be considered as a new industrial undertaking but is only an extension of the earlier 'Chemco' Unit. Revenue Audit hat further pointed out that since the 'Chemco' unit and 'Chemex' Unit are engaged in a priority industry the sum total of the profit or loss of the two units together should be considered and as the latter unit had incurred loss in earlier years which would wipe out the profits of the two units together for the relevant year deduction under S.80 (1) would not be admissible respect of these two unit. .... .... in view of the foregoing as I had reason to believe Chat assessee’s income chargeable to tax had escaped assessment within the meaning of S.147(b), a notice under S. 148 dated 11. 3.76 was served on the assessee on 12 3.76" 2. Dr. Pal appearing on behalf of the petitioner contend that it is clear from the draft order and I may mention at this stage that the recorded reasons which by consent of parties have been tendered and formed part of the records of this case contain substantially the same reason. That the Income Tex Officer proposed to reopen the assessment on the basis of the opinion of the audit department of the revenue on a question of law. "This argument was made on the basis that in the draft order and the recorded reasons it is clearly stated that the exemption order S. 80(1) of the Act was wrongly quoted. 3. In support of this contention Dr. "This argument was made on the basis that in the draft order and the recorded reasons it is clearly stated that the exemption order S. 80(1) of the Act was wrongly quoted. 3. In support of this contention Dr. Pal strongly relies on a recent decision of the Supreme Court in the case of Indian and Eastern Newspaper Society v. Commissioner of Income Tax New Delhi, reported in 119 ITR 996. In that case the question whether an Internal audit report by an internal audit party of the Income Tax Department could be regarded as an 'information' within the meaning of S.147(b) of the Act. After a careful consideration of the entire matter and after referring to two earlier decision of the Supreme Court itself. In the case of Kayanji Mavli & Constitution. (1976)m 102 ITR 287 and R.K. Malhotra ITO v. Kasturbhat Lalbhai, 109 ITR 537 the three judgment of the Supreme Court came to the conclusion that such information from an audit report it is confined to a pure question of fact would be an opinion within the meaning of S. l47(b) of the Act. With regard to the question of law, the Supreme Court appears to have held that the audit party can communicate such law to the Income Tax Officer, but its function may end there. In other words after receipt of that communication as to the state of the law as it were, the Income Tax Officer has to, after applying his mind, come to its opinion as to the position of the law. To quote one passage from the judgment, which is to be found at page 1004 of the report "in very case the ITO must determine for himself what is the effect and conclusion of the law mentioned in the audit note and whether in consequence of the law which has now to his notice he can reasonably believe that income has escaped assessment. The basis of his belief must be the law of which he has now become aware. The opinion rendered by the audit party in regard to the law cannot for the purpose of such belief, add to or colour the significance of such law. In short, the true evaluation of the law in the assessment must be made directly and solely by the I.T.O." 4. In my view the contention of Dr. The opinion rendered by the audit party in regard to the law cannot for the purpose of such belief, add to or colour the significance of such law. In short, the true evaluation of the law in the assessment must be made directly and solely by the I.T.O." 4. In my view the contention of Dr. Pal is sound and should be accepted. It is clear from the recorded reasons as also the portion of the draft assessment order which I have set out earlier that the Income Tax Officer has mechanically followed an interpretation of law with regard to S.80(1) of the Act given by the audit department without in any way applying the mind to the legal position it does not appear from the recorded reasons that the Income Tax Officer in any way independently considered the opinion of the audit department and came to his own conclusion. In other words he merely acted as a rubber stamp of the audit. 5. The learned Advocate appearing for the Revenue contends before me that having taken part in the proceeding and awaiting a favourable result the petitioner cannot now be allowed to invoke this jurisdiction that order has gone against. In other words he sought to invoke the well-known principle that in this equitable jurisdiction the petitioner cannot be allowed to approbate and reprobate at the same time. 6. Dr. Pal in answer to this contention pointed out to me that this was a part of question of jurisdiction. It is well-known that unless the Income Tax Officer received an information “as understood in law” and as interpreted by the supreme Court judgment mentioned above, he cannot assume jurisdiction to issue the, impugned notice. Since it is a case of total initial lack of jurisdiction, can no amount of participation or submission to jurisdiction can confer jurisdiction to the Income Tax Officer. This legal proposition is too well known to require any elaboration. I accept this contention of Dr. Pal. I make it quite clear that I am not deciding any other point involved in this application. 7. In the result. I hold that the impugned notice must be quashed as being entirely without jurisdiction following respectfully the above mentioned decision of the Supreme Court. The application therefore succeeds and the rule is made absolute. Pal. I make it quite clear that I am not deciding any other point involved in this application. 7. In the result. I hold that the impugned notice must be quashed as being entirely without jurisdiction following respectfully the above mentioned decision of the Supreme Court. The application therefore succeeds and the rule is made absolute. There will be a writ in the nature of mandamus directing the respondent to forthwith recall, cannot and withdraw the impugned notice dated 11.3.76 for the assessment years 1971-72 and 1972-73 and the notice dated 30th July, 1977 in respect of those two years and also a writ in the nature of prohibition restraining the respondents from proceeding on the basis of the said notices in any manner whatsoever. If any assessment orders have been made pursuant to the impugned notices, they are hereby quashed by a writ of certiorari The prayer for lay of operation of this order is refused. Rule made absolute.