GHOSE, J. - (1.) THIS is an application under Art. 226 of the Constitution in the writ constitutional jurisdiction of this Court, inter alia, for the issue of a writ in the nature of mandamus commanding the respondents to cancel or withdraw or rescind the notice dated 28th March, 1970, issued by the respondent No. 1 under s. 148 of the IT Act, 1961, for the asst. yr. 1961-62, for the issue of a writ in the nature of certiorari quashing or setting aside the said notice and also for the issue of a writ in the nature of prohibition commanding the respondents to forbear from giving any effect to the said notice dated 28th March, 1970, issued under s. 148 of the IT Act, 1961, for the said asst. yr. 1961-62.
(2.) THE petitioner at all material times carried on business in co-partnership under the name and style of Jai Bharat Industries, Hissar, in the State of Haryana. THE petitioner also used at all material times to carry on business in speculation in shares in joint-stock companies. THE petitioner was also at all material times a director of Jindal (India) (P) Ltd. during the assessment year with which we are concerned, i.e., 1961-62, which is the accounting year ending 31st March, 1961. The petitioner derived income from the aforesaid two several businesses as well as by way of director's remuneration of the said company and dividend in respect of shares, held by the petitioner in the said company. The petitioner filed his return of income for the said asst. yr. 1961- 62 under the Indian IT Act, 1922 (hereinafter referred to as the "old Act"). The petitioner duly appeared before the respondent No. 1 who is the assessing authority of his income under s. 23(2) of the old Act, explained all queries connected with the return filed by the petitioner. At the time of the said assessment, the income of the firm of Jai Bharat Industries of Hissar was not assessed. The respondent No. 1 assessed the total income of the petitioner for the said asst. yr. 1961-62 under s. 23(3) of the old Act subject to any rectification that might be necessary under s. 35(5) of the old Act when the said firm's assessment would be completed. The amount of tax demanded on such assessment has been paid by the petitioner. The petitioner received a notice dated 28th March, 1970, issued under s. 148 of the IT Act, 1961 (hereinafter referred to as "the new Act"). By the said notice, the respondent No. 1 informed the petitioner that the respondent No. 1 proposed to reassess the income of the petitioner for the very same asst. yr. 1961-62 and called upon the petitioner to deliver to the respondent No. 1 a return of his income for the said assessment year on the ground that the respondent. No. 1 had reason to believe that the petitioner's income chargeable to tax for the said asst. yr. 1961-62 had escaped assessment.
(3.) ON receipt of the said notice the petitioner wrote to the respondent No. 1 denying that the respondent No. 1 had any reason to believe that income of the petitioner for the asst. yr. 1961- 62 had escaped assessment. The petitioner further denied in the said letter that the respondent No. 1 had any material before him on which the respondent No. 1 could have any reason to believe that the petitioner's income had escaped assessment. The petitioner by the said letter asked respondent No. 1 to cancel or withdraw or rescind the said notice. In the petition filed under Art. 226 the petitioner had taken various grounds in challenging the said notice under s. 148 of the new Act. The petitioner has stated in the petition that the petitioner's wife, Smt. Jamuna Devi Jindal, was a partner together with five other persons in a firm, M/s Om Prakash and Co., carrying on business at 161/1, Mahatma Gandhi Road, Calcutta. Amongst the five other partners of the said firm, three were ladies and two were male persons. The ladies were Smt. Ram Devi Jindal, Smt. Vidya Devi Jindal and Sm. Parameshwari Jindal. The said firm is duly registered under the Indian Partnership Act. The said firm applied for registration under s. 26A of the old Act before the ITO, 'J' Ward, District III(2), Calcutta. While granting such registration to the said firm of M/s Om Prakash and Co. for the asst. yr. 1961-62, the said ITO held, inter alia, that Jamuna Devi Jindal, the petitioner's wife, was a mere benamidar of the petitioner in the said firm. The real partner in the said firm was the petitioner. In support of the petition before me, Mr. Debi Pal urged the following points : (1) The ITO, being the respondent No. 1, did not believe, in fact, that the income of the petitioner for the asst. yr. 1961-62 had escaped assessment. (2) The respondent No. 1 had, in fact, no material before him to induce himself to have this belief. (3) Assuming (but without admitting) that the respondent No. 1 had any material before him to hold such belief, such material, if any, could not lead to such belief in a reasonable man. (4) If it be contended that the finding of the said ITO, "J" Ward, District III(2), Calcutta, in the aforesaid proceeding under s. 26A of the old Act led to such belief on the part of the respondent No. 1, the said finding was not arrived at on any issue involved in the said proceeding and in fact and in law was a finding arrived at in excess of jurisdiction and was null and void. (5) The respondent No. 1 had not disclosed the material which led to such belief in his mind in the affidavit filed by him in opposition to the instant petition and, therefore, the fulfilment of the conditions precedent for the issue of the said notice under s. 148 of the new Act have not been proved by the respondent No 1. Hence the rule should be made absolute as no cause has been shown by the respondents as against the rule nisi issued. ;