BALIA, J. - (1.) THIS writ petition is directed against the issuance of notice under Section 148 of the Income Tax Act,1961 dated 26th March, 1991 for reopening of the assessment of the petitioner's income for the assessment year 1984-85.
(2.) THE brief facts leading to this petition are that for the accounting period ending on 14th Nov. , 1983 relevant to assessment year 1984-85, the petitioner has filed its return of income under Section 139 (1) of the Act, 1961 on 12. 6. 1984 at Sumerpur. On 3. 9. 1984 the Income Tax Officer passed assessment order under Section 143 (3) of the Act for the assessment year 1984-85 assessing the total income of the assessee. Thereafter a survey was conducted by the Income Tax Department on the business premises of the assessee on 6. 12. 1985 and certain documents and books were seized from the assessee's premises which were impounded under Section 131 (3) of the Act and on basis of analysis of all those documents, the reassessment proceeding for assessment year 1984-85 was initiated by issuing notice under Section 148 on 14. 4. 1986. During the pendency of all these proceedings the amnesty scheme inviting the tax payers to clean their tax defaults with certain concession was brought into the effect by the Central Government and the assessee made application thereunder on 16. 2. 1987. The application related to surrender of income from assessment year 1984-85 to 1986-87. For the assessment year 1984-85, the assessee surrendered the income from undisclosed sources at Rs. 66,000/- stating it to be peak cash credit for that period, which could not be explained. On making of this application the inspecting Assistant Commissioner with whom the authority vested for making an order of settlement under amnesty scheme called for report from the Income Tax Officer. The I. T. O. in its letter dated 29th March, 1987 proposed additions on account of peak cash credits determined by him from the impounded documents. Considering the material on record including report of I. T. O. dt. 29. 3. 1987 the Inspecting Assistant Commissioner of Income Tax, Jodhpur Range, Jodhpur vide his order dated 30th March, 1987 passed an order of settlement on agreed basis. As per the order for assessment year 1984-85, the assessee was required to surrender Rs. 1,10,000/- in addition to assessed income for assessment year 1984-85 which was duly surrendered by the assessee. Consequently, the assessment was made on the aforesaid amount and the taxes were duly paid in terms of Amnesty Scheme.
(3.) THEREAFTER the impugned notice was issued for initiating the re-assessment proceedings once again in respect of assessment year 1984-85. Indisputedly the position is that the impugned notice was issued on 26th March, 1991 that is to say after the expiry of 4 years from the end of the assessment year 1984-85 in respect of which reassessment proceedings were sought to be initiated. Apart from other contentions, the learned counsel for the petitioner has urged that this is a case of initiating reassessment proceedings after the assessment order under Section 143 (3) was made and after reassessment proceedings were initiated as a result of survey conducted at the business premises of the assessee and in terms of settlement proceedings under Amnesty Scheme another assessment was passed on agreed basis are no escapement of income has been attributed to any failure or omission on the part of the assessee to file the return which was required to file on failure to disclose the facts truly and fully all material relevant for the assessment of his income. He contests the validity of the initiating reassessment proceedings vide notice dated 26. 3. 1991 on two fold grounds. Firstly that the reassessment order passed in pursuance of the order Annex. 7 was made by the Inspecting Assistant Commissioner on his application under Amnesty Scheme considering the report submitted by the Income Tax Officer about the peak cash credits for the period relevant to the assessment year 1984-85 and the present reassessment proceedings under challenge have also been initiated on the basis of same report. Apparently, once the assessment order under Section 143 (3) was passed by the Assessing Officer in the reassessment proceedings after taking into consideration the said report which has gone into consideration while making the order of settlement by the Inspecting Assistant Commissioner it is a case of change of opinion on the part of the Income Tax Officer. Mere change of opinion by considering the same material which has already been considered and interpreted on earlier occasion, cannot give jurisdiction to the Assessing Officer to initiate proceedings under Section 147/148 of Income Tax Act. Secondly, it was contended that since earlier reassessment order was made under Section 143 (3) and all documents on the basis of which the reassessment proceedings have been initiated were in possession of the Assessing Officer himself since 1985. The omission or failure on the part of the assessee to disclose any facts truly or correctly on the basis of such documents cannot be attributed to the assessee as he was not in possession of those documents to make any submission on that behalf. He, therefore, contents that in the aforesaid circumstances, when the escapement of income, satisfaction about which even if held to be based on some material, but which failure is not attributable to omission or failure on the part of the assessee, the period of limitation for initiating the assessment proceedings is only four years from the end of expiry of the relevant assessment year which expired on 31st March, 1989. Notices issued on 26th March, 1991 were beyond limitation, therefore, the Assessing Officer had no jurisdiction to initiate proceedings under Section 148 whether the proceedings are considered to have been taken under unamended Section 147 or amended provisions of the Section 147 which came into force w. e. f. 1. 4. 1989. ;