Pathak, J. - (1.)THE petitioner prays for a writ in the nature of certiorari against the notice under Section 148 of the Income-tax Act, 1961, dated July 14, 1967, and a writ in the nature of prohibition restraining the Income-tax Officer from taking proceedings pursuant to that notice.
(2.)THE petitioner carries on the business of the manufacturing of ice and the preservation of potatoes in cold storage. It was assessed to income-tax for the assessment year 1961-62 by an assessment order dated July 5, 1961. Subsequently, the Income-tax Officer issued a notice dated December 21, 1961, under Section 34(1)(a) of the Indian Income-tax Act, 1922, and upon the proceedings which followed made an assessment order dated December 22, 1965, THE petitioner appealed against the assessment order and the appeal was allowed by the Appellate Assistant Commissioner of Income-tax on May 10, 1967. THE Appellate Assistant Commissioner proceeded on the view that the notice under Section 34(1)(a) had been issued on the basis that the petitioner had not disclosed fully and truly all material facts in respect of its property income, and, as that was incorrect, there was no jurisdiction in the Income-tax Officer under Section 34(1)(a) and, therefore, he annulled the reassessment. THEreafter, it appears, the Income-tax Officer served a notice dated. July 14, 1967, issued under Section 148 of the Income-tax Act, 1961, for the same assessment year.
The learned counsel for the petitioner has raised a number of contentions before us.

The first contention is that if the income now sought to be assessed can be said to have escaped assessment, it has done So, not by reason of any omission or default on the part of the assessee during the original assessment proceeding but because of the failure of the Income-tax Officer to take valid proceedings for reassessment under Section 34 of the Act of 1922. The contention, it seems to us, is without substance. The income of an assessee can be said to escape assessment because of the failure of the Income-tax Officer to include it in the assessment made by him only where a proper and valid assessment proceeding has been taken by the Income-tax Officer. The expression " escaped assessment " is significant. It refers to income which could have been assessed but was not assessed. And income can be assessed only in a proceeding which is within the jurisdiction of the Income-tax Officer. The Appellate Assistant Commissioner found that the proceeding under Section 34(1)(a) was entirely without jurisdiction, inasmuch as the material facts in respect of the petitioner's property income had been disclosed by the petitioner during the original assessment proceeding, and, therefore, there was no jurisdiction in the Income-tax Officer to initiate proceedings under Section 34(1)(a). In substance, the Appellate Assistant Commissioner held that the reassessment proceeding so taken by the Income-tax Officer was void for want of jurisdiction. Nothing that, the Income-tax Officer did during that proceeding could be clothed with legal authority. Consequently, it is not possible to envisage that he could have included in that assessment proceeding the income he now seeks to assess. That being so, there can be no question of the income escaping assessment in the proceeding taken under Section 34(1)(a).

(3.)LEARNED counsel for the petitioner has referred us to Commissioner of Income-tax v. Rao Thakur Narayan Singh, 1965 56 ITR 234 ; [1965] 1 S.C.R. 990 (S.C.). That decision does not assist the petitioner at all. The Income-tax Officer there had issued a notice under Section 34 of the Act of 1922 and made an assessment order including in it the interest income as well as the forest income of the assessee. When the case was brought eventually before the Income-tax Appellate Tribunal, the Tribunal overlooked the fact that the only dispute subsisting related to the forest income and that it was admitted that the interest income had been disclosed by the assessee during the original assessment proceeding. The Tribunal made an order holding that the entire proceeding was without jurisdiction. The Income-tax Officer did not apply to the Tribunal for rectification of the order of the Tribunal, nor did he challenge the order before the High Court, and the matter became final. Instead, he initiated proceedings again under Section 34(1) of the Act for the purpose of assessing the interest income again. The Supreme Court held that the Income-tax Officer was bound by the finding of the Tribunal. It observed that the finding of the Tribunal that the Income-tax Officer had knowledge of the interest income as well as of the forest income at the time when the original assessment was made was binding upon him, and, therefore, it could not be said that the interest income had escaped assessment by reason of any failure or omission on the part of the assessee. In the present case, the facts are entirely distinguishable.
Learned counsel then relied on Commissioner of Income-tax v. Hemchandra Kanr [1970] 77 I.T.R. 1 (S.C.). The assessee in that case was a Hindu undivided family consisting of six members. Following the demonetisation of high denomination notes in January, 1946, the assessee encashed notes of the value of Rs. 19,000 and five members of the family encashed notes of the aggregate value of Rs. 1,10,000. The Income-tax Officer reopened the assessment of the assessee and the individual members and made orders of reassessment including the sum of Rs. 19,000 in the hands of the family and the sum of Rs. 1,10,000 separately in the hands of the five individual members.. Subsequently, he also issued a notice under Section 34(1)(a) of the Act of 1922, for the purpose of including a sum of Rs. 1,10,000 in the hands of the assessee-family. The Supreme Court held, affirming the view of the High Court that the proceedings were invalid, that all the material facts were before the Income-tax Officer when he reopened the assessment originally, and it was open to him then to include the entire amount of Rs. 1,10,000 in the hands of the assessee-family when he reassessed its total income at that stage. We are unable to see how the ratio of that case is attracted here.