M.M.Dutt, J. - (1.) This appeal is at the instance of the revenue and it is directed against the judgment of Amiya Kumar Mookerjee J. whereby the rule nisi obtained by the respondent on his application under Article 226 of the Constitution was made absolute. The principal question that is involved in this appeal is whether the Income-tax Officer had jurisdiction to reopen the assessment of the respondent for the assessment year 1962-63 by serving a notice under Section 148 of the Income-tax Act, 1961,
(2.) The respondent is a partner of the firm, M/s. Calcutta Hardware Stores, and carries on business as a dealer in black-sheet, sheet-cutting and plates and is an assessee under the Income-tax Act, 1961. The said firm filed its return for the assessment year in question together with copies of the profit and loss account and balance-sheet. In the course of hearing of the assessment proceeding for the said year, the firm, in compliance with the notice under Sections 142(1) and 143(2) of the Income-tax Act, 1961, produced books pf accounts, list of loans, list of interest paid, etc., as required by the Income-tax Officer for the purpose of assessment. It is alleged that the facts relevant to the assessment were fully and truly disclosed and brought to the knowledge of the Income-tax Officer. The Income-tax Officer, by his order dated September 26, 1963, completed the assessment of the firm under Section 143(3) on the total income of Rs. 82,101. Thereafter, a notice under Section 148 of the Income-tax Act, 1961, dated March 20, 1971, was issued by the Income-tax Officer to the firm alleging that he had reason to believe that income chargeable to tax for the assessment year 1962-63 had escaped assessment within the meaning of Section 147 of the Income-tax Act, 1961. By the said notice, it was proposed to reassess the income for the said assessment year, and the assessee was also called upon to file a return for the purpose of reassessment. In compliance with the said notice under Section 148, the respondent filed a return under protest on April 21, 1971, in respect of the assessment year in question showing an income from business to the extent of Rs. 81,789 as originally assessed by the Income-tax Officer.
(3.) The respondent moved this court by a petition under Article 226 of the Constitution challenging the jurisdiction of the Income-tax Officer to issue the notice under Section 148 and to reopen the assessment for the assessment year 1962-63. On the said petition of the respondent, a rule nisi, out of which the present appeal arises, was issued. At this stage, it may be stated that prior to the said rule another rule was obtained by the respondent being C. R. No. 607(W) of 1971 [Mahadeo Lal Tulsyan v. ITO challenging a similar notice under Section 148 whereby the assessment for the year 1961-62 was sought to be reopened by the Income-tax Officer. That rule was made absolute by Amiya Kumar Mookerjee J., by his judgment dated March 22, 1974. The present rule, relating to the assessment year 1962-63 also came up for hearing before Amiya Kumar Mookerjee J., and in view of his decision in the said C. R. No. 607(W) of 1971 [Mahadeo Lal Tulsyan v. ITO , his Lordship made the present rule absolute. An appeal was preferred by the revenue against the judgment of the learned judge in Civil Rule No. 607(W) of 1971. The said appeal was heard by a Bench consisting of Anil Kumar Sen and Manash Nath Roy JJ., and their Lordships, by their judgment dated September 21, 1976 (ITO v. Mahadeo Lal Tulsyan set aside that of the learned judge and discharged the rule.;