TMI Blog1994 (7) TMI 78X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner of Income-tax, (Central-1), Bombay. The contention of the petitioner is that the said notice, having been issued after the expiry of four years from the end of the relevant assessment year, must fulfil the conditions laid down in section 147(a) of the Income-tax Act, 1961 ("the Act"). According to the petitioner, one of the conditions for exercise of jurisdiction under section 147(a) of the Act that the income chargeable to tax should have escaped assessment for that year "by reason of the omission or failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment for that year" is absent in the instant case as he had made true and full disclosure of all material facts necessary for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he beneficial interest of the petitioner-assessee in the property transferred for a sum of Rs. 45,00,000 was Rs. 300. This was found on a perusal of the trust deed as well as the deed of assignment which showed that the petitioner, who was a beneficiary of the trust, was entitled not only to 30 per cent. of the net income of the trust but also to 30 per cent. share of the corpus of the trust (paragraph (b) of the deed of assignment). It was found that the share in the corpus of the trust was the cost of the beneficial interest of the petitioner in the asset which was transferred for a sum of Rs. 45,00,000. This information, according to the respondents, is material for the purpose of determination of capital gain because, if it was so, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ind out whether there was cost of acquisition or not. In such circumstances, according to Shri Dastur, there was no nondisclosure of primary facts by the assessee. We have carefully considered the rival submissions. We have also perused the reasons recorded by respondent No. 1, Assistant Commissioner of Income-tax, for initiating proceedings under section 147(a) of the Act and for obtaining approval of the Commissioner of Income-tax. On a consideration of the same, we find it difficult to accept the contention of the assessee that production of the trust deed or assignment deed by itself amounted to a true and full disclosure of the material facts necessary for the purpose of the assessment. We also do not agree with learned counsel for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erial evidence could with due diligence have been discovered by the Income-tax Officer will not necessarily amount to disclosure within the meaning of section 147. In view of this Explanation, it will not be open to the assessee to say, for example-- "I have produced the account books and the documents : You, the Assessing Officer, examine them, and find out the facts necessary for your purpose : My duty is done with disclosing these account books and the documents." His omission to bring to the assessing authority's attention those particular items in the account books, or the particular portions of the documents, which are relevant, will amount to "omission to disclose fully and truly all material facts necessary for his assessment." Nor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re was cost of acquisition of the property was not disclosed by the assessee, as a result of which he did not levy capital gains tax on the amount received on the transfer of the beneficial interest of the assessee in the asset in question following the decision of the Supreme Court in CIT v. B. C. Srinivasa Setty [1981] 128 ITR 294. Later, having discovered that there was a cost of acquisition for the asset, he has initiated proceedings under section 147(a). In this factual situation, we find it difficult to hold that the Assessing Officer had no material in his possession to satisfy him that the income of the assessee had escaped assessment by reason of the omission or failure of the assessee to disclose fully and truly all material facts ..... X X X X Extracts X X X X X X X X Extracts X X X X
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