The right of the Income-tax Officer to reopen an assessment which was already barred under the old Act (Income-tax Act, 1922) could not be revived by the new Act (Income-tax Act, 1961).

( 1 ) IN this application, the petitioner, Manik Chand Nahata, challenges a notice under Section 148 of the Income-tax Act, 1961 (hereinafter referred to as "the Act"), in respect of the assessment year 1949-50. It appears that two notices in identical terms for the same assessment year had been issued, one on the 5th March, 1966, and the other on the 8th March, 1966.

( 2 ) AT the time, the rule nisi was obtained, no reasons had been disclosed by the Income-tax Officer in respect of the impugned notices. The original petition contains the usual grounds of challenge stating that the conditions precedent to the exercise of power under Section 147 read with Section 148 of the Act had not been satisfied.

( 3 ) IN the affidavit-in-opposition affirmed by Sebabrata Saha, the Income-tax Officer, "k" Ward, District III (2), Calcutta, and affirmed on the 28th July, 1966, it is stated that the proceedings for reassessment for the assessment year 1949-50 was started against the petitioner on receipt of certain informations. Information was received that a sum of Rs. 72,513-7-6 was standing in the name of Sri Manik Chand Nahata in the books of account of Messrs. Hanutmull Budhmall. It is further stated that the assessee was summoned under Section 37 of the Income-tax Act, 1922, and thereafter, under Section 131 of the Act. According to the affidavit certain contradictions were found in the different statements made by the assessee. Paragraph 2 of the affidavit further proceeds to state as follows:"in view of these facts On the basis of the material in my possession I had reason to believe and I bona fide believe that due to the failure and/or omission on the part of the assessee to file the return and disclose all material facts relevant for the assessment, the income of the petitioner has escaped assessment and/or has been under-assessed and as such proceedings under Section 147 (a) of the Income-tax Act, 1961, have been initiated and notice under Section 148 of the Income-tax Act was duly served after fulfiling all conditions precedent. "

( 4 ) BEFORE the main rule was heard the petitioner came up with an appli cation for amendment of the petition by adding, inter alia, the following grounds:. -. "for that in view of the fact that the alleged escaped income is less, than Rs. 1 lakh the rigfit to reopen and/or make the assessment and/or recompute the income of the petitioner for the relevant assessment year was barred under the Indian Income-tax Act, 1922, at the date when -the Income-tax Act, 1961, came into force, i. e. , 1st April, 1962, and as such the Income-tax Officer has no competence, jurisdiction and/or authority to issue the notices under Section 148 of the Income-tax Act, 1961, in order to make an assessment and/or recompute the income which had become barred under the Income-tax Act, 1922, at the date when the Income-tax Act, 1961, came into force. "

( 5 ) ON the application for amendment I made the following order, by consent of parties, on the 9th December, 1969 :"the petitioner will be allowed to urge the grounds taken in this application at the time of the hearing of the main rule. Main rule to appear in the peremptory list for hearing on December 22, 1969. A/o if any by December 16, 1969, A/r if any by December 20, 1969. This order is without prejudice to the rights and contentions of the parties. "

( 6 ) IT may be noted that no further affidavit-in-oppositiort was filed by the respondents pursuant to the leave granted by me while allowing the amendment application.

( 7 ) DR. Debi Pal, appearing on behalf of the petitioner, draws my attention, in the first place, to Section 34 of the Indian Income-tax Act, 1922. The relevant portion of Section 34 is as follows:"provided that the Income-tax Officer shall not issue, a notice under Clause (a) of Sub-section (1)- (i) for any year prior to the year ending on the 31st day of March, 1941:. . . (ii) for any year, if eight years have elapsed after the expiry of