A notice under Section 148 can only be issued if there was an omission or failure of the assessee to disclose truly or fully all material facts necessary for the assessment year.

SUHAS CHANDRA SEN, J.

( 1 ) THE assessee has challenged a notice of reassessment under Section 148 issued on March 20, 1991, for the assessment year 1980-81. The original assessment was made under Section 143 (3) dated September 26, 1983. Under the amended provisions of Section 147, a notice may be issued reopening the assessment where an assessment has been made under Section 143 (3) beyond four years at the end of the relevant assessment year if the escapement of income from tax takes place by reason of the failure on the part of the assessee to disclose truly or fully all material facts necessary for that assessment year.

( 2 ) THERE is no dispute that the notice has been issued after the end of four years from the end of the relevant assessment year. The question is whether there was any omission or failure of the assessee in this case. In the recorded reason, the Income-tax Officer has stated that the reopening was for excessive grant of investment allowance which was not admissible in accordance with law. It appears from the facts noted in the recorded reasons that the reopening was being done on the basis of the facts disclosed by the assessee at the time of the assessment proceedings and also on the basis of certain notes given by the assessee along with his income-tax return. The Income-tax Officer has recorded as follows :"now, in the notes given by the assessee below the details of investment allowance claim for the following factories filed with the return it was stated as under ; loni factory : The abovementioned new plant and machinery were used during 1979 for the purpose of that part of the business of Peico Electronics and Electricals Limited which was engaged in the production of electronic components. Plastic and metalware products and electric materials for record players and tape recorders. Kalwa factory : The abovementioned new plant and machinery were used during 1979 for the purpose of that part of the business of Peico Electronics and Electricals Limited which was engaged in the production of electric lighting bulbs, fluorescent lighting tubes and components thereof (exclusive of glass ware), fluorescent power, high wattage lamps for industrial and public lighting (e. g. , mercury vapour lamps and halogen lamps), infra red medical apparatus, photographic lamps and other special purpose lamps. Calcutta factory: The abovementioned new plant and machinery are used during 1979 for the purpose of that part of the business of Peico Electronics and Electricals Limited which was engaged in the production of electronic components for radios, record players and intercommunication equipment. Luminarie factory : The abovementioned new plant and machinery were used during 1979 for the purpose of that part of the business of Peico Electronics and Electricals Limited which was engaged in the production of electric lighting fittings. "

( 3 ) THEREFORE, the reopening was not because of any omission on the part of the assessee to disclose any material fact but because of the failure of the Income-tax Officer to study the notes given by the assessee which were filed along with the return of income.

( 4 ) THE Income-tax Officer has also mentioned that the provisions of Section 150 were applicable in this case. The Income-tax Officer has recorded as follows :"the provisions of Section 150 (1) are also applicable in this case. It is seen from the records of the assessment year 1978-79 that in the original assessment order dated June 26, 1981, the investment allowance claim in respect of Kalwa factory and Luminarie factory was allowed as deduction, even though the plant and machinery installed in these factories were engaged in the production of the very same items referred to at page 1 of this annexure in respect of these factories. This mistake was rectified by an order under Section 154 dated May 20, 1985, and the investment allowance claimed in respect of these factories was withdrawn. On appeal filed by the assessee

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