Judgment :- AR. LAKSHMANAN, J. The above writ appeal is directed against the order of the learned single judge of this court made in W.P. No. 2132 of 1987 dated July 28, 1995, allowing the writ petition filed by the respondent herein and thereby quashing the proceedings of the Commissioner of Income-tax, Madurai, in C. No. 401/1/104/86-87 dated February 24, 1987, whereunder the appellant herein has chosen to call upon the respondent herein to show cause as to why the order enhancing or modifying the assessment or cancelling the assessment and directing a fresh assessment should not be made. In the concluding portion of paragraph 4 of the impugued notice, it is stated that the depreciation as computed at 15 per cent. in the original order dated March 25, 1985, but actually allowed in the revision order dated December 11, 1985, is prejudicial to the interests of the Revenue and hence erroneous, requiring interference by the Commissioner under section 263 of the Income-tax Act, 1961. The Inspecting Assistant Commissioner of Income-tax (Assessment) Madurai, as the Assessing Officer while making the assessment of the assessment year 1982-83 by his assessment order passed on March 25, 1985, inter alia, omitted to allow depreciation on the staple fibre yarn machinery used by the petitioner, though he had in the said order decided to grant depreciation at 15 per cent. on the said machinery. The writ petitioner filed an appeal against the said order to the Commissioner of Income-tax (Appeals), Madurai, who by his order in I.T.A. Nos. 51/84-85, 61/85-86 and 70/85-86 dated October 14, 1985, allowed the claim of the writ petitioner in the following terms : "Mistake in computation of depreciation Rs. 8, 97, 482-the Inspecting Assistant Commissioner in para 14 of the assessment order (stated ?) that he would allow a depreciation of Rs. 8, 97, 482 but actually he forgot to allow this deduction while computing the total income which he arrived at Rs. 31, 90, 314. This appears to be an oversight. He is directed to rectify this mistake. This ground is allowed." Pursuant to this direction the Inspecting Assistant Commissioner of Income-tax, Madurai, passed his consequential order dated December 11, 1985, granting depreciation on staple fibre yarn machinery at 15 per cent. The said order reads thus : "PROCEEDINGS OF THE INSPECTING ASSISTANT COMMISSIONER OF INCOME-TAX (ASSESSMENT) RANGE-I, MADURAI PRESENT : SHRI A. SELVARAJ 47-016-CO4063 Dated 11-12-1985 Sub. This ground is allowed." Pursuant to this direction the Inspecting Assistant Commissioner of Income-tax, Madurai, passed his consequential order dated December 11, 1985, granting depreciation on staple fibre yarn machinery at 15 per cent. The said order reads thus : "PROCEEDINGS OF THE INSPECTING ASSISTANT COMMISSIONER OF INCOME-TAX (ASSESSMENT) RANGE-I, MADURAI PRESENT : SHRI A. SELVARAJ 47-016-CO4063 Dated 11-12-1985 Sub. : Income-tax assessment 1982-83-Sithalakshmi Mills, Mills Premises, Thirunagar, Revision of-Reg. Ref. : Order of the CIT(A) in ITA No.70/85-86 (IAC. No. 14-10-1985). ORDER The assessment completed under section 143(3) on March 25, 1985, is revised for the following reasons : 1. To give effect to the Commissioner of Income-tax (Appeals)'s order cited above. 2. The business income arrived at should be Rs. 35, 98, 223 instead of Rs. 34, 98, 223. A letter was issued on September 12, 1985, to the assessee calling for objection. The assessee requests allowance of depreciation omitted to be allowed Rs. 8, 97, 482, while it has no objection for rectifying the error in total income. The Commissioner of Income-tax (Appeals) has also allowed the depreciation on staple fibre machinery. Therefore, depreciation at 15 per cent. on stable fibre machinery is allowed and the error in totalling is rectified in this order as under : (Rs.) (Rs.) (Rs.) I. Income from house property 12, 529 II. Business income Income as per original 34, 98, 223 assessment dated 25-3-1985 Add : Difference in totalling 1, 00, 000 35, 98, 223 Less : Relief allowed by the CIT (A) 14, 36, 796 1. Incentive wage (para-10) 2. ESA on generator (para 26) 9, 556 3. Depreciation on staple 8, 97, 482 23, 45, 807 12, 52, 416fibre machinery III. Income from other sources : Dividend 2, 71, 188 Revised gross total income 15, 36, 133 Less : Deduction under Chapter VIA 1. Under section 80M 1, 62, 700 2. Under section 80G allowable 47, 325 (50 per cent. of Rs. 94, 650) Allowed 2, 000 Further allowed by the CIT (A) 45, 325 47, 325 3. Under section 80J 4, 24, 076 4. Under section 80VV 2, 850 6, 36, 951 8, 99, 182 or 8, 99, 180 Income-tax on Rs. Under section 80M 1, 62, 700 2. Under section 80G allowable 47, 325 (50 per cent. of Rs. 94, 650) Allowed 2, 000 Further allowed by the CIT (A) 45, 325 47, 325 3. Under section 80J 4, 24, 076 4. Under section 80VV 2, 850 6, 36, 951 8, 99, 182 or 8, 99, 180 Income-tax on Rs. 8, 99, 180 at 55 % 4, 94, 549 Add : Surcharge at 2 1/2 % 12, 364 Total 5, 06, 913 Less : tax paid 7, 21, 798 Balance refund 2, 14, 885 (Sd.) A. Selvaraj Inspecting Assistant Commissioner." * According to the Revenue, the staple fibre machinery was entitled to depreciation only at 10 per cent. and not at 15 per cent. as presumed and granted by the Inspecting Assistant Commissioner of Income-tax Madurai, and that the order of the Commissioner of Income-tax (Appeals), Madurai, dated October 14, 1985, referred to above dealt with the appeal relating to the three assessment years 1978-79, 1979-80 and 1982-83. In respect of the assessment year 1979-80, one of the issues that was considered and decided in the said order related to the amount of depreciation that will be allowable in respect of staple fibre machinery. In disposing of the issue, the Commissioner of Income-tax (Appeals) Madurai, held as follows : "The appellant says that depreciation at the rate of 15 per cent. should be allowed on these machines which manufacture staple fibre yarn and the appellant says that the Inspecting Assistant Commissioner himself has allowed this higher rate for the subsequent assessment year 1981-82. I find that item 111(u) B(3) of the Depreciation Table speaks of 'Artificial silk manufacturing machinery and plant except wooden parts'. This does not speak of 'staple fibre' as claimed by the appellant. Hence, the assessee's argument has no force." Accordingly, the Department felt that the excess grant of depreciation at 15 per cent. on the staple fibre machinery for the assessment year 1982-83 was prejudicial to the interests of Revenue and hence the Commissioner of Income-tax, Madurai, exercised his suo motu revisional power under section 263 of the Income-tax Act, 1961, in order to revise the assessment and grant only 10 per cent. depreciation on the staple fibre yarn machinery and issued his notice dated February 24, 1987. In the notice dated February 24, 1987, in para. 4 and para. depreciation on the staple fibre yarn machinery and issued his notice dated February 24, 1987. In the notice dated February 24, 1987, in para. 4 and para. 5 it is stated as under : "4. Instead of the 10 per cent. normal depreciation, the assessee had claimed the higher rate of depreciation in respect of the staple fibre machinery and plant. Item 111(ii) B(3) of the depreciation table speaks of 'artificial silk manufacturing machinery and plant except wooden parts'. But this does not speak of 'staple fibre' as claimed by the assessee. Chambers' 20th Century Dictionary defines 'staple' as manufactured wool or other raw material textile fibre. Hence, the staple fibre machinery will not fall or fit in the group of 'artificial silk manufacturing machinery and plant'. Therefore, the depreciation as computed at 15 per cent. in the original order dated March 25, 1985 (but actually allowed in the revision order dated December 11, 1985), is prejudicial to the interests of the Revenue and hence erroneous requiring interference by the Commissioner under section 263 of the Income-tax Act, 1961. 5. In exercise of the powers conferred on me under section 263 of the Income-tax Act, 1961, it is proposed to pass such order as the circumstances of the case justify, including an order enhancing or modifying the assessment or cancelling the assessment and directing a fresh assessment to be made." The assessee was permitted to file their objections, if any, in writing against the proposed action. The assessee instead of filing objections to the notice dated February 24, 1987, to the Commissioner of Income-tax under section 263 of the Act, rushed to this court and filed the above writ petition to call for the records of the respondent dated February 24, 1987, and to quash the same, and consequently to restrain the Commissioner of Income-tax from taking any further proceedings in this regard to the assessment of the petitioner pursuant to his notice in C. No. 401/1/104/1986-87 dated February 24, 1987, for the assessment year 1982-83. In the writ petition, it was contended that the original assessment order of the assessing authority has merged with the order of the appellate authority and, therefore, no order of the assessing authority survives or is available for revision under section 263 of the Act by the Commissioner and that section 263 empowers the Commissioner to revise the orders of his subordinates only, i.e., the assessing authority, and inasmuch as the order of the assessing authority has merged with that of the appellate authority and inasmuch as the ground on which the respondent seeks to revise the original assessment has been considered and allowed by the appellate authority, the respondent has absolutely no jurisdiction to invoke the powers under section 263 of the Act. The writ petition was resisted by the Department contending that the notice issued by the Commissioner is perfectly legal and valid in law and cannot at all be assailed or taken exception to, as stated by the writ petitioner. It is also stated that the impugned notice was issued by the Commissioner for the purpose of restricting the depreciation granted to staple fibre yarn machinery to 10 per cent. instead of 15 per cent. that had been in the assessment, and that the issue as to the correct rate of depreciation that would be allowable to the staple fibre yarn machinery was not in issue before the Commissioner of Income-tax (Appeals) for this assessment year though the issue was considered for an earlier assessment year 1979-80 and hence it is submitted that by reason of Explanation (c) to section 263(1) extracted earlier, the issue of the impugned notice by the Commissioner of Income-tax was perfectly in order and cannot be taken exception to.The learned single judge of this court, by order dated July 28, 1995, has allowed the writ petition and quashed the notice dated February 24, 1987. According to the learned single judge the subject-matter of the issue relating to the allowance of the claim relating to depreciation was very much before the appellate authority and considered and dealt with and ultimately allowed as noticed in the said order and it is not the reason for which the claim is allowed by an appellate authority that is relevant for appreciating the question as to whether a particular claim was the subject-matter of the appeal before the appellate authority but to see whether really the issue relating to the subject of the claim was for consideration before the appellate authority. The learned judge has also found that the Department has failed before the appellate authority to project the claim of the Department properly, and thereby oppose the claim of the assessee and, therefore, the Department cannot invoke the suo motu powers of revision under section 263 of the Act. The learned single judge also held that the Department cannot place reliance or have the advantage of Explanation (c) to section 263(1) , in view of his specific finding in the order that the question of the correct rate also was and ought to be held as having been part and parcel of the claim of depreciation claimed and allowed in the appeal. Aggrieved by the above order, this writ appeal has been filed in this court. Mr. S. V. Subramanian, learned senior standing counsel for income-tax contended that the learned single judge is not correct in his view that para. 27 of the order of the appellate authority would show that the subject-matter of the issue relating to allowance of the claim relating to depreciation was very much before the appellate authority and considered and dealt with and ultimately allowed by the said appellate authority. He has also relied on the decision in Vedantham Raghaviak v. Third Addl. ITO 1963 (49) ITR 314 (Mad), which according to him is the authority for the decision that once the order of rectification is passed, the assessment itself is modified and what remains is not the order of rectification but only the assessment as rectified. He has also relied on the decision in Vedantham Raghaviak v. Third Addl. ITO 1963 (49) ITR 314 (Mad), which according to him is the authority for the decision that once the order of rectification is passed, the assessment itself is modified and what remains is not the order of rectification but only the assessment as rectified. In ground No. 9 it has been specifically stated that the writ petition having been filed only against a show-cause notice, the respondent herein should not have been permitted to bypass the remedy under the statute but should have been directed to file its reply to the said show-cause notice and pursue the remedies under the statute.The writ petition was admitted on March 5, 1987, and interim stay of further proceedings was granted by this court and subsequently by order dated December 17, 1987, this court directed that the order pursuant to the impugned notice may be passed but shall not be given effect to until the disposal of the writ petition. Venkataswami J. (as he then was) passed the above order in the following terms. "The interim stay is made absolute, only to the extent of giving effect to the order. In other words, the Income-tax Officer can pass final orders in the light of the order passed by the Commissioner of Income-tax, but cannot give effect to the revised order." Pursuant to this direction, the case was posted for hearing on February 29, 1988, on which date Shri M. S. Sivanath, director of the assesseecompany, appeared and the case was discussed with him. The Commissioner of Income-tax, Madurai, after considering the representation of the assessee's representative and also of the records directed the Inspecting Assistant Commissioner (Assessment) Range-1, Madurai, to modify the assessment by restricting the depreciation on staple fibre manufacturing machinery to 10 per cent from 15 per cent. This order was passed on March 21, 1988, but was not communicated to the assessee, as directed by this court and was kept in abeyance until the matter is finally disposed of by this court. An appeal against the said order would lie before the Income-tax Appellate Tribunal which should be filed within 60 days from the date of receipt of the order of the Commissioner of Income-tax, Madurai. An appeal against the said order would lie before the Income-tax Appellate Tribunal which should be filed within 60 days from the date of receipt of the order of the Commissioner of Income-tax, Madurai. In view of the direction given by this court, the Commissioner of Income-tax has not so far served the order on the assessee. We, therefore, direct the Commissioner of Income-tax, Madurai, to serve a copy of the order in C. No. 401/1/51/87-88, dated March 21, 1988, on the assessee, so that the assessee would be in a position to file an appeal within 60 days from the date of receipt of the said order of his. As seen earlier, the Commissioner of Income-tax, Madurai, by his order under section 263 of the Act had proposed to pass an order reducing the depreciation from 15 per cent. to 10 per cent. and cancelling the assessment and directing a fresh assessment to be made. The assessee was asked to submit his objections in writing to the proposed action. However, the assessee without submitting his objections in writing has rushed to this court by filing the above writ petition to quash the notice dated February 24, 1987. However, the writ petition was entertained by this court and was allowed ultimately quashing the impugned notice. This apart, during the pendency of the writ petition, this court permitted the Income-tax Officer, Madurai, to pass final orders pursuant to the impugned notice but directed that it shall not give effect to the same until the disposal of the writ petition. It is now stated that pursuant to the said direction, the Commissioner of Income-tax has passed his final orders on March 21, 1988, but as directed by the court, it was not given effect to. The order passed by the Income-tax Officer, Madurai, in original was placed before us. The assessee was represented by Mr. M. S. Sivanath, director of the assessee, before the officer and he also argued the matter and placed materials in support of their claim. The officer ultimately passed an order modifying the assessment by restricting the depreciation on staple fibre manufacturing machinery to 10 per cent. Against this order, an appeal would lie before the Income-tax Appellate Tribunal which should be filed within 60 days from the date of receipt of the order. The officer ultimately passed an order modifying the assessment by restricting the depreciation on staple fibre manufacturing machinery to 10 per cent. Against this order, an appeal would lie before the Income-tax Appellate Tribunal which should be filed within 60 days from the date of receipt of the order. In our opinion, the writ petition is not maintainable or entertainable by this court on two grounds. The first is that it is against the proposed action by the Department proposing the revise the rate of depreciation from 15 per cent. to 10 per cent. and the second is that during the pendency of the writ petition, the Commissioner of Income-tax himself was permitted to pass final orders and during the enquiry by the Commissioner, the assessee was represented by one of his directors, who put forth his case before the Commissioner of Income-tax and when the assessee himself has participated in the proceedings before the Commissioner of Income-tax and contested the proceedings, it has to be presumed that the assessee was not interested in pursuing or prosecuting the writ petition. In this case, the Commissioner of Income-tax has passed the order on March 21, 1988, long prior to the order passed in the writ petition. The order passed by the Commissioner of Income-tax was not given effect to because of the direction given by this court, awaiting the final outcome of the writ petition. We, therefore, are of the view that an opportunity must be given to the assessee to file an appeal to the Income-tax Appellate Tribunal within 60 days from the date of receipt of the order and contest the same on the merits and in accordance with law. Accordingly, the Commissioner of Income-tax, Madurai, is directed to communicate the order dated March 21, 1988 to the assessee immediately and the assessee will have 60 days time for filing an appeal before the Income-tax Appellate Tribunal from the date of service of the order.In view of the directions now given by this court, the order of the learned single judge dated July 28, 1995, and made in W.P. No. 2132 of 1987 is set aside and the notice under section 263 of the Act issued for 1982-83 by the Commissioner of Income-tax, Madurai, dated February 2, 1987, and impugned in the writ petition is restored. However, the respondent herein, the writ petitioner, is at liberty to raise all the contentions which have been raised by them in the writ petition and also all the other factual and legal questions before the Income-tax Appellate Tribunal. For all the foregoing reasons, the writ appeal is allowed with the above observations. However, there will be no order as to costs.