- (1.) THIS is a writ petition under Art. 226 of the Constitution. In this petition the petitioner prays for the issue of a writ of certiorari for quashing the notice dated the 22nd February, 1966, issued by the respondent, ITO, under s. 148 of the IT Act, 1961, for reopening the assessment of the petitioner, for a writ in the nature of mandamus commanding the respondent IT authorities to rescind, cancel or withdraw the said notice and for a writ of prohibition restraining the respondents from giving any effect to the said notice or from taking any steps pursuant thereto.
(2.) THE facts relevant for the purpose of this application may be noted. The petitioner is a lawyer practising in this Court. He has various immovable properties from which he derives income. The petitioner is assessed to income-tax as also to wealth-tax. In the returns submitted by the petitioner for assessment of his income-tax he has been showing the income derived from his properties. The petitioner had half share in the property No. 15, Gobinda Mondal Road, Calcutta. The petitioner sold his share in the said property on the 5 th of August, 1960, for the sum of Rs. 1,75,000. This property had all along been shown in the petitioner's returns for the assessment of wealth-tax ; and for the purpose of assessment under the WT Act the petitioner's share in this property had been valued at Rs. 1,70,000. On the basis of the said valuation of the petitioner's share in the said property, the petitioner was being assessed to wealth-tax. The petitioner had obtained necessary clearance certificate as required under the WT Act, when the petitioner sold his share in the said property at No. 15, Gobindra Mondal Road. The petitioner had also shown the income derived from his share in this particular property in his income-tax returns for the years prior to the asst. yr. 1961-62. In the return filed by the petitioner for assessment of his income-tax for the asst. yr. 1961-62, this property or the income therefrom had not been included but in the said return amount of interest from securities, which, according to the petitioner, were purchased out of the sale proceeds of the said property, had been included. The return submitted by the petitioner for the said year of assessment 1961-62 was considered and assessment order was duly passed by one N. C. Khasnabis, who was the then ITO, dealing with the petitioner's assessment. It may be noted that the said Mr. Khasnahis was at the relevant time also the appropriate officer dealing with the assessment of the petitioner under the WT Act. For the said asst. yr. 1961- 62, the petitioner's income had been assessed at Rs. 33,412 and an order of assessment was passed on the 27th of December, 1962, by Mr. Khasnabis, the then officer dealing with the petitioner's case. On the 18th January, 1966, Sri A. R. Das Gupta, who had then become the ITO in charge of "H" Ward, District III(I), Calcutta, dealing with the assessment of the petitioner, wrote the following letter to the petitioner : "I am informed that you sold your property at No. 15, Gobinda Mondal Road, Cossipore, Calcutta, on August 5, 1960, at a price of Rs. 1,75,000. You are requested to let me know when you acquired the above property and the purchase price and or cost of acquistion of the same to enable me to determine capital gains arising out of the above transaction. You are required to see me in this connexion on February 2, 1966, at 12 noon." By his letter dt. the 2nd of February, 1966, the petitioner replied to the said letter of the ITO. In his reply the petitioner had, inter alia, contended that the fact of the sale of the property was known to the officer who had been dealing with the petitioner's assessment, of income-tax and wealth-tax and the officer concerned also knew about the valuation of the property at the relevant time and the assessments were all completed with the knowledge of all facts. The petitioner had further stated that there was no question of any capital gain arising out of the sale of the said property and had requested the officer to drop the enquiry proceedings.
(3.) ON the 22nd of February, 1966, the ITO issued a notice under s. 148 of the IT Act, 1961, for the purpose of reopening the assessment of the petitioner for the said asst. yr. 1961-62. The said notice may be set out : "Notice under s. 148 of the IT Act, 1961, IT Circle, District III(I), Calcutta. Dt. 22nd February, 1966. No. III(I) 665 b/H. To Sudhir Krishna Bhose, 24-A, Roy Bagan Street, Calcutta. Whereas I have reason to believe that your income chargeable to tax for the asst. yr. 1961-62 has escaped assessment within the meaning of s. 147 of the IT Act, 1961. ;