The Income-tax Officer cannot issue notices under Section 148 (1) of the Income-tax Act, 1961, for reassessment of the petitioner's income as provided under Section 147 (b) of the Act, merely on the basis of information that in case of another company depreciation allowance of 7% was given in respect of identical machineries as claimed by that company.

( 1 ) THIS rule was obtained by the petitioner for quashing several notices under Section 148 read with Section 147 (b) of the Income-tax Act, 1961 (referred to herein as "the Act") proposing to reopen the assessment for the assessment years 1964-65 to 1968-69.

( 2 ) THE petitioner is an existing private limited company under the provisions of the Indian Companies Act, 1913. It carries on, inter alia, business of manufacture and sale of "safety razor blades". In due course it submitted its returns of income for the assessment years from 1964-65 to 1967-68 which were duly assessed allowing depreciation amongst other things on the blade manufacturing machineries at the rate of 10% for each year. Thereafter, by a subsequent order dated May 6, 1968, the Income-tax Officer also made certain rectification of the assessment. The petitioner, however, took an appeal before the Appellate Assistant Commissioner against the assessment for the year 1964-65 who by his order dated June 24, 1968, gave certain deductions in the total income of the assessee for this year.

( 3 ) THEREAFTER, the petitioner was served with five notices on March, 25, 1969, issued by the respondent No. 1 proposing to reopen the assessment for all these years, i. e. , from 1964-65 to 1968-69, as it was said that in consequence of information in the possession of the Income-tax Officer he had reason to believe that the income for all these years chargeable to tax had escaped assessment under Section 147 (b) of the Act. The Income-tax Officer also directed the petitioner to submit returns for each of the years. Then, after several correspondence the petitioner requested the Income-tax Officer to treat the original returns for all these assessment years as returns filed incompliance with his notices. As the Income-tax Officer in spite of representations of the petitioner did not withdraw the notices, the petitioner has come up to this court in writ jurisdiction and obtained the present rule.

( 4 ) QUITE a number of grounds were taken attacking the jurisdiction of the Income-tax Officer but the main grievance as pressed by Mr. Mitter on behalf of the petitioner is that conditions precedent for issuing such notices were not fulfilled. It is contended that there was no material to show that the Income-tax Officer had reason to believe that the income for these years escaped assessment.

( 5 ) A preliminary objection as to the maintainability of the instant writ petition in this court has been raised on behalf of the respondents by Mr. Amiya Kumar Basu, learned standing counsel. It is said that the petitioner has an adequate and alternative remedy by way of an appeal against the order of assessment that may be made pursuant to the notice given and, therefore, the present writ petition is not maintainable.

( 6 ) SINCE the decision of the Supreme Court in Calcutta Discount Co. Ltd. v. Income-tax Officer, which was a case under Section 34 of the Indian Income-tax Act, 1922, the law is fairly settled that so far as the question whether the Income-tax Officer had reasons to believe that underassessment had occurred on account of non-disclosure of fact was not a mere question of limitation only but was a question of jurisdiction which could be investigated by the High Court under Article 226 of the Constitution. This was a case of escaped assessment owing to omission or failure to disclose truly and fully all material facts necessary for a particular year. The Supreme Court held that two conditions has to be satisfied :"the first was that the Income-tax Officer must have reason to believe that the income ofthe assessee had been under-assessed. The second was that he must have also reason to believe that such under-assessment had occurred by reason of, (i) omission or failure on the part of the assessee to make a return under Section 22, or (ii) omission or failure to disclose fully and truly all material facts necessary for the disputed years. Both these condit