TMI Blog2004 (4) TMI 44X X X X Extracts X X X X X X X X Extracts X X X X ..... 22-4-2004 - Judge(s) : M. KATJU., R. S. TRIPATHI. JUDGMENT The judgment of the court was delivered by M. Katju J. -This writ petition has been filed for a writ of certiorari to quash the impugned notices under section 148 of the Income-tax Act, 1961, dated March 27, 1987, and March 29, 1988, for the assessment years 1978-79 and 1979-80, respectively, and for quashing the notice under section 143(2), dated February 22, 1990. Heard learned counsel for the parties. The petitioner is an Hindu undivided family which owns a residential house at Etawah and receives rental income. It is alleged in para. 2 of the petition that the karta of the Hindu undivided family, Mr. J. P. Bajpai, is occupying the said premises for his individual u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioner's family for the assessment year 1985-86 was also completed under section 143(3) on February 6, 1986, and the return declaring net income of Rs. 5,000 was accepted by the Assessing Officer (vide annexure VII to the writ petition). The assessment of M/s. Atul Traders for the assessment year 1979-80 was completed on September 26,1981, ex parte, and the alleged deposit in favour of the petitioner appearing on the liability side of the balance-sheet of M/s. Atul Traders was treated as bogus and the entire amount along with interest was added in the hands of the firm, M/s. Atul Traders, Etawah. Hence it is alleged that respondent No. 2 had knowledge that the alleged deposit of the petitioner has been shown fraudulently by M/s. At ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his account book to be bogus and has added the alleged deposit plus interest in the hands of M/s. Atul Traders vide order dated March 30,1989, copy of which is annexure VII to the petition. In pursuance of a notice under section 148 the petitioner filed the returns for the assessment years 1978-79 and 1979-80. It is alleged in para. 17 of the petition that while passing the assessment order under section 144 on September 26, 1981, the fact that bogus deposit of the petitioner was shown in the books of M/s. Atul Traders was well within the knowledge of the assessing authority, and the said deposit was added in the hands of M/s. Atul Traders. As such this fact was well in the knowledge of the assessing authority, and only after the lapse of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hose of Shri J. P. Bajpai by the signature expert, action was taken under section 148 of the Income-tax Act. In para. 17 of the counter-affidavit it is stated that while it is true that the additions have been made in the assessment order of M/s. Atul Traders including unexplained credit under section 68, the Commissioner of Income- tax (Appeals), Agra, has deleted the addition on the ground that M/s. Kanhaiya Lal Pyare Lal and M/s. Ravi Shanker Krishna Shanker are the source of the deposit. Against the order of the Commissioner of Income-tax (Appeals), the Department has filed an appeal before the Income-tax Appellate Tribunal, Allahabad, which is pending. It is alleged that the notices have rightly been issued to the petitioner. Fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee has disclosed all the primary facts that is the end of his duty. It is then for the assessing authority to draw the proper conclusions from those facts. If the conclusions drawn by the Assessing Officer from the primary facts disclosed by the assessee are erroneous, the assessing authority cannot reopen the assessment merely on the basis of a change of opinion. This principle has been reiterated by the Supreme Court in ITO v. Lakhmani Mewal Das [1976] 103 ITR 437; CIT v. E Bhanji Lavji [1971] 79 ITR 582 (SC); Parashuram Pottery Works Co. Ltd. v. ITO [1977] 106 ITR 1 (SC) and CIT v. Burlop Dealers Ltd. [1971] 79 ITR 609 (SC). In Foramer v. CIT [2001] 247 ITR 436 (All), it was held that where there was no failure on the part of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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