KASLIWAL, J. - (1.) THIS petition has been filed by the assessee under S. 256(2) of the IT Act, 1961 praying that the Tribunal be directed to make a statement of the case and refer the following question of law in addition to one question already referred by him : (1) "Whether on the facts and circumstances of the case, the ld. ITO was competent to issue notice under S. 147(a) before the expiry of the period prescribed under S. 139(4)(b)(iii) of the IT Act, 1961 and whether the Hon'ble Tribunal was justified in holding that the notice issued by the ITO was under S. 147(a) and not under S. 147(b) of the IT Act, 1961 and so the assessment was not time barred -
(2.) IT may be stated at this stage that the Tribunal has referred the following question to this Court for its opinion : "Whether the Hon'ble Tribunal was justified in holding that the case was governed by the provisions of S. 153(2)(a) although the return was filed under S. 139(4) of the IT Act, and as such the assessment was not time barred, and that S. 153(a)(c) had no application in this case -
(3.) THE Tribunal by order dt. 15th Dec., 1982 held that it was common ground between the parties that no return of income was filed by the assessee prior to the issue of the notice under S. 148 of the Act by the ITO. There was thus omission and failure on the part of the assessee to make a return of his total income on account of which income chargeable to tax had escaped assessment of that year. That being so, the ITO was within his rights to invoke jurisdiction under the first situation covered by S. 147(a). Learned Tribunal considered the provisions of cl. (b) of S. 147. It was held by the Tribunal that cl. (b) of S. 147 provides that notwithstanding that there has been no omission or failure as mentioned in cl. (a) of S. 147 on the part of the assessee, the ITO has in consequence of information in his possession reason to believe that income chargeable to tax has escaped assessment for any assessment year. Under this provision the ITO has power to invoke jurisdiction notwithstanding the fact that there was no omission or failure on the part of the assessee in making return of his total income. The Tribunal further observed that in other words, even if the assessee had filed the return of his income, the ITO in consequence of information in his possession had reason to believe that income chargeable to tax had escaped assessment, he is empowered to invoke jurisdiction under cl. (b). From the language of cl. (b), it is apparent that jurisdiction under S. 147(b) can be invoked by the ITO only for the purpose of reassessment and not for first assessment. We have seen the order of Tribunal and as a fact it has been observed by the Tribunal that it was common ground between the parties that no assessment had been made by the ITO earlier as the assessee had not even filed the return of total income nor the ITO had issued any notice under S. 139(2) or even under S. 148 earlier. We are thus clearly of the opinion that the case of the assessee in the facts and circumstances of this case cannot fall under S. 147(b) of the IT Act, and it falls in the first situation mentioned in S. 147(a) of the Act. Learned counsel for the assessee vehemently submitted that in order to bring the case in the purview of S. 147(a), it was necessary for the ITO to hold that he had reason to believe that by reason of the omission or failure on the part of the assessee to make a return under S. 139 for any assessment year to the ITO, income chargeable to tax had escaped assessment for that year. In our view, no return at all had been filed by the assessee and a notice was given by the ITO under s. 148 of the Act and thereafter return was filed as such it was not a case of reassessment. The provisions of S. 147(b) alone can thus be attracted and not S. 147(b). In view of these circumstances we do not find any error in the order of ld. Tribunal in not referring the question for the opinion of this Court. The reference application having no force is dismissed.;