TMI Blog1980 (8) TMI 58X X X X Extracts X X X X X X X X Extracts X X X X ..... referred to as " the Act "), for reassessment for the year 1962-63. The learned single judge had quashed that notice. The facts of the case have been fully set out in the order of the learned single judge. For the purpose of this appeal, it is sufficient to set out only the following facts: The petitioners and their father, Amberkar Veerupanna Dodda Yellappa, constituted a Hindu joint family. He was the karta of the family and he passed away on October 14, 1968. The family had purchased for Rs. 12,800 an, extent of 146 acres of agricultural lands and subsequently had agreed to sell them to a company, the Yellamma Cotton, Woollen and Silk Mills Limited (hereinafter referred to as " the company ") for Rs. 86,000. The family had received an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter having obtained the permission of the CBDT, issued the impugned notice to the petitioners in their capacity as erstwhile coparceners of the HUF, proposing to reopen the assessment for the year 1962-63. In the writ petition, the petitioners had contended that as the return filed by the family on April 27, 1967, pursuant to the earlier notice under s. 148 was a valid return but had not been disposed of in accordance with law, it was not competent for the ITO to issue the impugned notice under s. 148 and that, hence, the impugned notice was invalid and without jurisdiction. The learned single judge upheld that contention. In this appeal, the learned standing counsel for the I.T. Dept. contended that the learned single judge erred in h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed single judge. But Sri Srinivasan sought to justify the ultimate order of the learned single judge on another ground which we shall presently set out. In the present case, more than four years had elapsed from the end of the assessment year 1962-63. Hence, the assessment for that year could not be reopened under cl. (b) of s. 147. If at all, it could be reopened under cl. (a) of that section. That clause reads : " (a) the Income-tax Officer has reason to believe that, by reason of the omission or failure on the part of an assessee to make a return under section 139 for any assessment year to the Income-tax Officer, or to disclose fully and truly all material facts necessary for his assessment for that year, income chargeable to tax ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al assessment. To bring such undisclosed income to tax, he sought to reopen the assessment on the ground that the amounts for which those drafts had been purchased by the firm, had not been recorded in the disclosed accounts of the firm. The firm had contended that the ITO could not invoke the jurisdiction under s. 147(a) of the Act. Upholding that contention, this is what the Supreme Court observed (p. 4): " In the case before us the assessee did not disclose the transactions evidenced by the drafts which the Income-tax Officer discovered. After this discovery the Income-tax Officer had in his possession all the primary facts, and it was for him to make necessary enquiries and draw proper inference as to whether the amounts invested in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat income was not due to any omission or failure on the part of the petitioners' family to disclose that income or any material facts relating thereto fully and truly. In our opinion, the decision of the Supreme Court in Gemini Leather Stores' case [1975] 100 ITR 1 fully supports the contention of Sri Srinivasan. Hence, the order of the learned, single judge should be upheld on ground different from the one on which he rested his order. In the result, we dismiss this appeal. In the circumstances of the case, we direct the parties to bear their own costs. Order on oral application for grant of a certificate of fitness to appeal to the Supreme Court After we pronounced the above judgment in court, the learned counsel for the revenu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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