Failure to disclose material facts necessary for assessment under Section 147(a) of the Income-tax Act, 1961, must be based on facts in existence at the relevant time and known to the assessee.

AJIT K. SENGUPTA, J.

( 1 ) IN this reference made at this instances of the Revenue, the following question has been referred by the Tribunal to this court under Section 256 (2) of the Income-tax Act, 1961. "whether, on the facts and in the circumstances of the case, the Tribunal misdirected itself in law in holding that the proceedings under Section 147 of the Income-tax Act, 1961, bad not been validly initiated "

( 2 ) THE facts as found by the Tribunal in this case are as under : the assessment year under reference is 1959-60. For this year, the original assessment of the assessee was completed op a total income of Rs. 19,000 comprising Rs. 7,000 as "business income'' and Rs. 12,000 as directors remuneration assessed under the head "income from other sources". Subsequent to the completion of the original assessment of the assessee, the Income-tax Officer initiated proceedings under Section 147 (a) of the said Act after recording the following reasons on March 12, 1968:"it has been held by the Income-tax Officer, Survey Ward, District V (1), Calcutta, that Sri G. P. Lohia is a benamidar of his father, Sri S. N. Lohia,, my assessee, who has not disclosed this fact. The returned income of Sri G. P. Lohia for this year is Rs. 14,618. Hence, action under Section 147 (a) is, necessary. (sd.) D. C. Datta, March 12, 1968. Income-tax Officer, C-Ward, District VI (1), Calcutta. "

( 3 ) THE Tribunal, in this case, has clearly recorded the fact that the materials on the basis of which the Income-tax Officer, Survey Ward, District V (1), held Sri G. P. Lohia to be a benamidar of the assessee has not been brought on the record. The reasons as recorded by the Income-tax Officer give an impression that the assessee failed to disclose to his Assessing Officer the fact that the Income-tax Officer, Survey Ward, District V (1), had treated his son as a benamidar of his father. The Tribunal observed that the assessee could not be said to have failed to disclose the aforesaid fact, since the aforesaid finding was recorded by the Income-tax Officer in the case of the son, Sri G. P. Lohia, long after making the original assessment of the assessee for the year 1959-60.

( 4 ) THE assessee, in this case, had already been assessed to income-tax in a regular manner. His assessment was sought to be reopened under Section 147 only on March 12, 1968, i. e. , after the expiry of four years from the end of the assessment year 1959-60. Therefore, reassessment in this case can only be justified under Section 147 (a ). In other words, the assessee must be found to have failed to disclose fully and truly all material facts necessary for his assessment for the relevant year. The assessee can disclose only such facts or materials as are in existence at the relevant time, and which are known to him. The finding of another Income-tax Officer in the case of the assessee's son recorded long after the making of the original assessment of the assessee could not have been disclosed by the assessee since such finding was not in existence at the relevant time.

( 5 ) WE, therefore, find no justification to interfere with the finding recorded by the Tribunal in this case. The Tribunal, in our opinion, was right in quashing the reassessment proceedings initiated in this case. The question referred to us by the Tribunal is, accordingly, answered in the negative and in favour of the assessee. There will be no order as to costs.

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