The four years' embargo provided in the proviso to Section 147 of the Income-tax Act, 1961, is mandatory in respect of both the cases where the assessee is in default or where the assessee is not in default.

( 1 ) THE appeals being A. P. O. No. 118 of 2002 and A. P. O. No. 361 of 2001 arise out of the judgments and orders both dated January 28, 2002, passed in W. P. No. 2492 of 1994 (Simplex Concrete Piles (India) Pvt. Ltd. v. Deputy CIT [2002] 255 ITR 49) and W. P. No. 2489 of 1994 (Geo Miller and Co. Ltd. v. Deputy CIT [2002] 254 ITR 620), respectively. The learned judge was pleased to dismiss both the writ petitions after considering the relevant position in facts and proposition of law, which have since been assailed in these appeals.

( 2 ) THE moot question we are required to consider is the validity and legality of the notices, all dated July 29, 1994, issued by the respondent-Income-tax Department under Section 148 of the Income-tax Act, 1961, for reopening the respective assessment under Section 147 for the assessment years 1984-85 to 1989-90 and 1985-86 to 1989-90, respectively, in the two cases.

( 3 ) DR. Pal has contended that there was an embargo of a period of four years in reopening the assessment in respect of cases falling under Clause (b) of Section 147 as it stood prior to April 1, 1989, where the assessment is sought to be reopened on the ground other than failure or omission on the part of the assessee to disclose fully and truly all material facts necessary for assessment (read with Clause (b) of Sub-section (1) of Section 149 ). After the amendment, the proviso to Section 147 provides similar four years' embargo on grounds other than the assessee's default. He has also contended that the provisions being procedural law, it would be governed by the amended provision, since in 1994, the amended provisions were in force. But if it is done under the un-amended provision, then he stands on a better footing. According to him, these four years' embargo is not dependent on Section 151 where the period of four years had expired in respect of cases sought to be reopened on the basis of information other than the assessee's default. Therefore, the notices should be quashed. He has referred to various decisions to which reference would be made at the appropriate stage.

( 4 ) MR. Dipak Som, learned counsel for the respondent, in Appeal No. 361 of 2001, appearing with Mr. Joydeb Saha, has contended that the period of limitation of four years, provided in the proviso to amended Section 147, is dependent on certain conditions, namely, that if the assessee had failed to make a return under Section 139 or respond to a notice under Section 142 (1) or Section 148 or to disclose fully and truly all material facts necessary for assessment. Therefore, in the present case, after the notices under Section 148 were issued, the failure to respond to the said notice is sufficient to reopen the case. It is not necessary that this was being done on the basis of the information received by the assessee by reason of settling of fluid position by the apex court's decision rendered in 1993 (CIT v. N. C. Budharaja and Co. [1993] 204 ITR 412 ). Therefore, these notices cannot be challenged. He has secondly contended that when such notices were issued, this court should be slow to interfere with the proceedings on the notices and determine their validity at the threshold and go into the question with regard to the validity of the notices. He thirdly contended that the notices, as it appears from the paper book, do not disclose on what ground they were issued. Therefore, the court cannot presume that they were issued on the ground other than the assessee's default and decide the case on this basis. Fourthly, he has also pointed out that sufficient reasons having been given and the sanction of the Commissioner having been obtained, the validity and legality of the notices cannot be challenged.

( 5 ) MR. Pradip Ghosh, appearing on behalf of the Revenue in Appeal No. 118 of 2002, has adopted the submissions made by Mr. Som and contended that Section 147 is subject to Section 149. In case of information other than the assessee's d