Sabyasachi Mukharji, J. - (1.) The petitioner, Shri Ganesh Chandra Khan, in this application under article 226 of the Constitution, challenges three notices all dated 25th of May, 1971, issued under Section 148 of the Income-tax Act, 1961, by the Income-tax Officer, "A" Ward, Hooghly, for the assessment years 1963-64, 1964-65 and 1965-66. It is the case of the petitioner that the petitioner No. 1 is one of the trustees of the separated trust of one Jogendra Chandra Khan. The other trustee is Smt. Annapurna Khan, wife of the petitioner. The petitioner states that the petitioner is the sole beneficiary of the said trust. For the assessment year 1963-64, the petitioner filed a return showing an income of Rs. 9,617. The Income-tax Officer, however, computed the total income of the petitioner at a sum of Rs. 15,038 of which the house property income was computed at Rs. 11,582. The immovable properties which were subjected to tax included one house property being premises No. 9/1, Gariahat Road, P. S. Ballygunge, District 24-Parganas. It is this property which has led to the controversy in this proceeding. For the assessment years 1964-65 and 1965-66, the total income of the petitioner was assessed at Rs. 30,085 and Rs. 35,334, respectively. Out of the aforesaid total income the house property income was computed at Rs. 11,854 and Rs. 11,969, respectively. The aforesaid premises being premises No. 9/1, Gariahat Road, referred to hereinbefore, was under the occupation of the Government of India, since 16th of October, 1963, on a monthly rental of Rs. 400. The same was subsequently increased to Rs. 484. It is stated in the petition that the petitioner had requested for enhancement of the rent. The Government, however, refused to enhance the rent on the ground that Rs. 484 was the amount which was fixed as the standard rent as per provisions of the West Bengal Rent Control Act. In the premises according to the Government, the petitioner was not entitled to any enhanced rent. The petitioner, thereafter, served a notice dated 25th August, 1962, on the Government of India for vacating the premises on the ground that the petitioner wanted the said building for personal use. Thereafter, it appears the Government initiated proceeding for requisitioning the building under the Requisitioning and Acquisition of Immovable Property Act, 1952. Under the provision of the said Act, the Government requisitioned the building and, thereafter, on the 11th November, 1965, the petitioner and his wife entered into an agreement with the Government whereunder there was an agreement for payment of compensation of Rs. 2,128. Prior to entering into of the said agreement, the First Land Acquisition Collector, Calcutta, by a memorandum dated 21st of September, 1965, had informed the petitioner and his wife that the rent-compensation in respect of the said building which had been requisitioned under the said Act and possession thereof were taken on the 29th of December, 1962, had been fixed at Rs. 2,128 per month inclusive of taxes and cost of the repairs. Following the aforesaid award the agreement referred to hereinbefore was entered into. It appears that in the regular assessment for the assessment year 1968-69, the aforesaid compensation had been taken as gross rental and was assessed as such. The petitioner preferred an appeal before the Appellate Assistant Commissioner. The Appellate Assistant Commissioner for the assessment year 1968-69, by his order dated 2nd February, 1973, held that the amount paid as compensation for that year was revenue receipt but it could not be taxed under the head "House Property" assessed as such. According to the Appellate Assistant Commissioner the said income was assessable under "other sources" and the assessment was, therefore, set aside with a direction to the Income-tax Officer to compute the income under the head "other sources". I was told from the Bar that the Income-tax Appellate Tribunal, by its order dated 3rd August, 1974, has held that the compensation amount, apart from Rs. 484, should be excluded from tax altogether for the assessment year 1968-69. Counsel for the petitioner drew my attention to a copy of the judgment of the Income-tax Tribunal in Income-tax Appeal No. 796 (Cal) of 1973-74 and Income-tax Appeal No. 1720(Cal) of 1973-74. Thereafter, it is stated from the Bar that a reference application was made and the said reference is pending in this court.
(2.) In the reasons for reopening for three years with which I am concerned and which were produced before me, the Income-tax Officer has stated as follows: "I have reasons to believe that by reason of omission or failure on the part of the assessee to disclose fully or truly the material facts necessary for the original assessment, the income from house property situated at No. 9/1, Gariahat Road, Calcutta, amounting to Rs. 41,966 has escaped assessment."
(3.) Therefore, action was proposed under Clause (a) of Section 147 of the Income-tax Act, 1961. The reasons for the three years were identical.;