Judgment :- K.A. THANIKKACHALAM, J. At the instance of the Department, the Tribunal referred the following question for the opinion of this court under section 256(2) of the Income-tax Act, 1961 (hereinafter referred to as "the Act") : "Whether, on the facts and in the circumstances of the case and having regard to section 36(1)(iv) of the Income-tax Act, 1961, the reassessment made under section 147(b) of the Act for the assessment year 1972-73 was properly cancelled ?". The assessee is a company in which the public are not substantially interested. The assessment for the assessment year 1972-73 was originally completed on November 21, 1974. Subsequently the audit party pointed out that in the original assessment, the depreciation on roads was wrongly allowed and that 80 per cent. of the initial contribution of Rs. 46, 950 to the superannuation fund was wrongly deducted under section 36(1)(iv) of the Act in computing the income of the assessee. The Income-tax Officer, therefore, reopened the assessment under section 147(b) of the Act. In the reassessment, he held that the assessee was not entitled to the depreciation on roads amounting to Rs. 53. He further held that what was allowable as initial contribution to the superannuation fund under section 36(1)(iv) was only 1/5th of 80 per cent. of the initial contribution and not 80 per cent. of the initial contribution itself. He, therefore, held that the amount admissible was only Rs. 9, 390 being 1/5th of Rs. 46, 950, representing 80 per cent, of initial contribution of Rs. 58, 687. Thus, he disallowed a sum of Rs. 37, 560 and the reassessment was completed on a total income of Rs. 35, 32, 840 against Rs. 34, 64, 650 originally determined. On appeal, the Appellate Assistant Commissioner upheld the validity of the reopening of the assessment under section 147(b) of the Act, relying upon the decision of the Supreme Court in R.K. Malhotra, ITO v. Kasturbhai Lalbhai 1977 AIR(SC) 2129, 1978 (1) SCR 289 , 1977 (3) SCC 519 , 1977 (109) ITR 537, 1977 UJ 559 , 1977 CTR(SC) 336 and also the disallowance made by the Income-tax Officer. Aggrieved, the assessee went on appeal before the Appellate Tribunal. Aggrieved, the assessee went on appeal before the Appellate Tribunal. The Appellate Tribunal, relying upon the decision of the Supreme Court in Indian and Eastern Newspaper Society v. CIT 1979 AIR(SC) 1960, 1979 (119) ITR 996, 1979 (4) SCC 248 , 1980 (1) SCR 442 , 1980 UJ 305 , 1979 (12) CTR 190, 1979 (2) TAXMAN 197, 1979 (119) JTR 996, 1979 (12) CTR(SC) 190, 1979 (12) CTR(Bom) 258, cancelled the reassessment, holding that the reopening was invalid as the audit note cannot be construed as information. According to the Appellate Tribunal, the view of the audit party could not be said to represent the correct state of law unless it is supported by decisions of courts. On the basis of the audit note, the Income-tax Officer came to the conclusion that initial contribution to superannuation fund under section 36(1)(iv) of the Act was only 1/5th of 80 per cent. of the initial contribution and not 80 per cent. of initial contribution itself. This view was taken on the basis of the notification issued by the Central Board of Direct Taxes. In CIT v. Hyderabad Asbestos Cement Products Ltd. 1988 (172) ITR 762, 1988 (71) CTR 22, 1988 (39) TAXMAN 250, the Andhra Pradesh High Court held that conditions numbers 2 and 3 laid down in the Central Board of Direct Taxes Notification No. S.O. 3433, dated October 21, 1965, had to be disregarded. In accordance with section 36(1)(iv) of the Act and rule 88 of the Income-tax Rules, the assessee is entitled to claim deduction of the entire sum contributed to the approved superannuation fund during the previous year relevant to the assessment year. In so far as depreciation withdrawn on roads is concerned, it is also not the correct view taken by the Income-tax Officer on the basis of the audit report because the Supreme Court in CIT v. Gwalior Rayon Silk Mfg. Co. Ltd. 1992 AIR(SC) 1782, 1992 (196) ITR 149, 1992 (3) JT 158 , 1992 (1) Scale 1000 , 1992 (3) SCC 326 , 1992 (2) SCR 1017 , 1992 (104) CTR 243, 1992 (62) TAXMAN 471, 1992 (2) TLR 865, 1992 (104) CTR(SC) 248, held that roads are buildings for the purpose of depreciation, and, therefore, the assessee is entitled to depreciation under section 32 of the Act. The audit note relied upon by the Income-tax Officer is an erroneous one. The audit note relied upon by the Income-tax Officer is an erroneous one. Therefore, on the basis of the erroneous report, reopening cannot be made, since it would not constitute information under section 147(b) of the Act. Accordingly, we answer the question referred to us in the affirmative and against the Department. No costs.