Appeals Nos 1179 1782 of 1970
From the Judgment  Order dated the 7th March 1969 of the Andhra Pradesh High Court in Writ Petition Nos
1042 1045 of 1964
section C Manchanda B B Ahuja and R N Sachthey for the Appellant In all the Appeals
section V Gupte Anwarulla Pasha J B Dadachanji A Subba Rao and Anjali K Varma for the Respondents In all the Appeals
M N Phadke A V Rangam Gopal Nair and A Subhashini for the Interveners In all the Appeals
The Judgment of the Court was delivered by GUPTA J
These are four appeals by certificate from a common Judgment of the High Court of Andhra Pradesh at Hyderabad by which the High Court directed the appellant Income Tax Officer Income Tax cum Wealth Tax Circle 11 Hyderabad to refrain from proceeding against the respondent under sec
147 a of the Income Tax Act 1961
The appellant had served on the respondent Nawab Sahib Mir Osman Alikhan Bahadur H E H the Nizam of Hyderabad notices under sec
148 of the income Tax Act 1961 stating that he had reasons to believe that income of the respondent chargeable to tax for the assessment years 1955 56 1956 57 1957 58 and 1958 59 had escaped assessment within the meaning of sec
147 of the Act and proposing to reassess the income for the said assessment years
The respondent challenged the validity of the proceedings under sec
147 sought to be initiated by filing four writ petitions in the High Court of Andhra Pradesh at Hyderabad
The High Court by the impugned Judgment allowed all the four petitions and prevented the Income Tax Officer from proceeding further under sec
147 of the Income Tax Act 1961
In these appeals the appellant questions the correctness of the High Court s decision
The material facts are briefly these
Assessments for the aforesaid four years were completed respectively on March 18 1958 March 19 1958 July 20 1958 and March 28 1961 under the income Tax Act of 1922
After the returns in respect of the said years were filed the Income Tax Officer called upon the respondent to state his relationship with four ladies by putting three queries to him
The queries were as follows a The rites and ceremonies attendant on legal marriages according to Muslim law and how they were observed in the case of each of the four ladies viz Dulhan Pasha Begum Saheba Mazharunnisa Begumsaheba Laila Begum Saheba and jani Begum Saheba
b What legal status is accorded to the children of Mazharunnisa Begum Saheb Laila Begum Saheba and Jani Begum Saheba vis a vis the children of the late Dulhan Pasha Be gum Saheba 466 c Any other factors from the point of view of the religion which distinguished the status of late Dulhan Pasha Begum Saheba from the other three ladies
 It appears that on May 1 1950 August 6 1950 and December 29 1950 the respondent had executed three trust deeds described respectively as Family Trust Miscellaneous Trust and Family Pocket Money Trust for the benefit of Mazharunnissa Begum Laila Begum Jani Begum and the minor children of the last two
in the aforesaid trust deeds the three ladies were described as wives of the respondent who was also referred to as the father of their minor children
In one of these documents viz the family Pocket Money Trust Deed the description of Laila Begum and Jani Begum as wives was preceded by the expression ladies of position
Under sec
16 3 of the income Tax Act of 1922 in computing the total income of any individual for the purposes of assessment the income of the wife or minor child of the assessee arising from assets transferred by the husband to the wife or the minor child otherwise than for adequate consideration was to be included
There is no dispute that these trust deeds were before the Income Tax Officer before he completed the assessments for the said four years
On September 9 1957 Shri C B Taraporewala Financial Adviser and General Power of Attorney Agent of the respondent filed a statement before the Income Tax Officer in reply to these queries
In this reply it was stated that the late Dulhan Pasha Begum Saheba was the only legally wedded wife of the respondent that with the other three ladies the respondent had not gone through the essential formalities of a valid marriage under Mohanunedan Law that these three ladies who occupied high social position and who were received in his palace were ladies of position and in view of the special favours bestowed upon them they were referred to as wives in the said three trust deeds though in the strict legal sense the description was incorrect and the children of these ladies were not tile legitimate children of the respondent and had no legal status as such
This explanation apparently satisfied the income Tax officer because in assessing the total income of the respondent for the said four years he did not include the income of these three ladies and their minor children arising out of the trust properties
It is also admitted that the beneficiaries of the trusts were separately assessed on the income derived from the trusts along with their individual income
On March 13 1964 the notices under sec
148 of the Income Tax Act 1961 were issued seeking to reopen the assessments under sec
147 of the Act
After some correspondence with the income Tax Officer the authorized representatives of the respondent Ms section G Dastgir and Company Chartered Accountants filed supplemental returns for the aforesaid four years without prejudice to the respondent s right to question the valid it of the notices
The supplemental returns merely affirmed the original returns filed by the respondent
By his letter dated April 15 1964 addressed to Ms Dastgir and Company the Income Tax officer stated the reasons for reopening the 467 assessments under sec
147a
Referring to two subsequent trusts named Fern Hill and Race View created by the respondent on March 211957 and December 5 1957 respectively it was stated that the material facts relating to these two documents were not brought to the notice of the Department in the course of the original assessment pro ceedings
Fern Hill Trust was created for the benfit of the children of Laila Begum and Race View Trust for the benefit of Jani Begum and her son Imdad Jah Bahadur in the Fern Hill Trust Deed Laila Begum was described as wife of the respondent and her children as the children of the respondent by her
Similarly in the Race View Trust Deed Jani Begum was described as wife of the respondent and lmdad Jah Bahadur as his son by her
According to the Income Tax Officer the facts that Laila Begum and Jani Begum were described as wives and their children as the children of the respondent in the Trust Deeds executed in 1957 indicated that certain material facts relevant for the assessment years were not disclosed to the Department that the statement given by the Financial Adviser is
untrue and that thereby income chargeable to tax has been under assessed
In his letter the Income Tax Officer also referred to sec
268 of Mulla s Principles of Mohammedan Law which enumerates the circumstances from which marriage will be presumed in the absence of direct proof and stated that the respondent having acknowledged the three ladies as his wives and their children as his children in the Trust Deeds executed in 1950 and 1957 all the circumstances mentioned in see
268 were present
The letter concluded by saying that it was established that the ladies and their children were the legal wives and legitimate children of the respondent
The common counter affidavit affirmed by the Income Tax officer in answer to the writ petitions was on similar lines to the aforesaid latter
Admittedly Fern Hill and Race View Trust Deeds executed in 1957 were not produced before the Income Tax officer when he made the original assessments for the four years in question
in the counter affidavit it was alleged that these two Trust Deeds were material and primary facts necessary for completing the assessments of the petitioner assessee for the relevant assessment years and it was submitted that if the said two documents had been disclosed at the time of the original assessments the income Tax Officer would have certainly arrived
at the conclusion that he came to in his letter dated April 15 1964
Clause a of Sec 147 of the Income Tax Act 1961 under which the assessments were sought to be reopened so far as it is relevant for the present purpose provides that if the Income Tax Officer has reason to believe that by reason of the omission or failure on the part of an assessee to disclose fully and truly all material facts necessary for his assessment for any year income chargeable to tax has escaped assessment for that year he may assess or reassess such income for the assessment year concerned
The High court held
that the reasons assigned for reopening the assessments did not fall within the scope of omission or failure on the part of the assessee to disclose fully and truly all material facts that all the material facts were before the Department 15 255 Sup
Cl75 468 when it made the assessments in question and the trusts created in 1957 did not throw a different light on the matters already disclosed
The question is whether the existence of the two trust deeds executed by the respondent in 1957 was a material fact necessary for his assessment for the relevant assessment years
The fact that the three ladies and their children have been described in these two documents as wives and children of the respondent would have been material if the description were anything new that the Income Tax Officer happened to discover for the first time
The three trust deeds of 1950 also contained the same description of these ladies and their children and the Income Tax Officer accepted the statement made by respondent s Financial Adviser Shri G B Taraporewala seeking to explain why the ladies had been described as wives therein
It is true that the trust deeds of 1957 were not produced at the time of the original assessment but we do not see what difference production of these two additional documents could have made which contain the same description of the ladies
Neither the letter addressed to the respondent s authorised representatives Ms section G Dastgir and Company by the Income Tax Officer on April 15 1964 nor the counter affidavit filed in the High Court explains this point
The documents of 1957 conform to those of 1950 in material particulars the trust deeds of 1957 only repeat what the deeds of 1950 had disclosed
Non production of the documents executed in 1957 at the time of the original assessments cannot therefore be regarded as non disclosure of any material fact necessary for the assessment of the respondent for the relevant assessment years
The High Court was right in holding that the Income Tax officer had no valid reasons to believe that the respondent had omitted or failed to disclose fully and truly all material facts and consequently had no jurisdiction to reopen the assessments for the four years in question
Having second thoughts on the same material does not warrant the initiation of a proceeding under sec
147 of the Income Tax Act 1961
Mr Manchanda learned counsel for the appellant took us through several sections of Mulla s Principles of Mohammedan Law including sec
268 and submitted that in the circumstances of the case it must be presumed that the three ladies were the legally wedded wives of the respondent
The law has not changed since the original assessments were made and it was open to the Income Tax Officer to make that presumption at the time
If he should have but did not do so then he cannot avail of sec
147 to correct that mistake
In any event we are not called upon in this proceeding to record a finding on the question whether in fact the ladies were respondent s legally wedded wives
We are concerned only with the question whether the condition precedent to the exercise of jurisdiction under sec
147 exists in this case we have found that it does not
Mr Manchanda also contended that the High Court exercising jurisdiction under article 226 of the Constitution had no power to investigate whether on the material before him the Income Tax Officer was justified in proceeding under sec
147 of the Income Tax Act 1961
He relied among others on the following decisions in support 469 of his contention section Narayanappa and others vs Commissioner of Income Tax Bangalore 1 Kantamani Venkata Narayana and Sons vs First Additional Income Tax Officer Rajahmundry 2 Commissioner of Income Tax Gujarat vs A Raman  Co 3 and of course Calcutta Discount Co Ltd vs Income tax Officer Companies District I Calcutta 4 We do not think that these decisions help him
In this case the decision of the High Court is not that the material before the Income Tax Officer was insufficient or that he had failed to draw the correct conclusion from the material before him but that no fresh material had come to light justifying reopening of the assessments
The authorities to which Mr Manchanda referred point out that the expression reason to believe occurring in sec
147 of the Income Tax Act 1961 or the corresponding sec
34 of the Act of 1922 does not mean a purely subjective satisfaction on the part of the Income Tax Officer the reasons for the belief must have a rational connection or a relevant bearing to the formation of the belief and that the High Court under article 226 of the Constitution has power to set aside a notice under sec
147 of the Act of 1961 or sec
34 of the Act of 1922 if the condition precedent to the exercise of jurisdiction under these sections does not exist
In the result these appeals fail and are dismissed with costs
One hearing fee
An application for intervention in these appeals made by three persons claiming to be sons of the respondent was not ultimately pressed no order is therefore called for on this application
Appeals dismissed


Summary:
In 1950 the respondent had executed three trust deeds for the benefit of three ladies who were described as his wives and himself as the father of their minor children
After the returns in respect of the assessment year 1955 56 1956 57 1957 58 and 1958 59 were filed by the respondent the Income tax Officer who had the three trust deeds before him called upon the respondent for information regarding his relationship to those three ladies as well as his relationship to a fourth lady
A statement was filed on behalf of the respondent before the Income tax Officer wherein it was stated that only the fourth lady was his legally wedded wife that the other three were merely referred to as the wives and that their children were not the legitimate children of the respondent
The Income tax Officer in assessing the total income of the respondent did not include under section 163 of the 1922 Act the income of those three ladies and their minor children arising out of the trust properties
In fact he assessed them separately with respect to their income from the trust properties
In 1964 the Income tax Officer issued notices under section 148 of the 1961 Act seeking to reopen the assessments under section 147 on the ground that there were two other trust deeds of 1957 which were not produced before the I T 0
in which also two of the ladies were acknowledged as the wives of the respondent and their children as his children and that their marriage should be presumed because of the acknowledgement
The respondent there upon challenged the validity of the proceedings and the High Court allowed his petition
Dismissing the appeal to this Court HELD  1 Section 147a provides that if the Income tax Officer has reason to believe that by reason of the omission or failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment for any year income chargeable to tax has escaped assessment for that year he may assess or reassess such income for the assessment year concerned
The fact that the ladies and their children had been described in the 1957 documents as wives and children of the respondent would have been material if the description were any thing new that the Income tax Officer happened to discover for the first time
But the 1950deeds also contained the same description
The non production of the 1957 documents at the time of the original assessment cannot therefore be regarded as non disclosure of any material fact necessary for the assessment of the respondent for the relevant assessment years
Having second thoughts on the same material does not warrant the initiation of a proceeding under section 147
467G H 468B D E 2 The law has not changed or since the original assessments were made and it was open to the Income tax Officer to have made the presumption that the ladies were the wives at the time when he made the assessment
He cannot avail of section 147 to correct his mistake
468F G 3 The expression reason to believe  occurring in section 147 of the 1961 Act or the corresponding section 34 of the 1922 Act does not mean a purely subjective satisfaction on the part of the Income tax Officer
The reasons for the belief must have a rational connection or relevant bearing to the formation of the belief
Therefore the High Court under article 226 has power to set aside a notice under section 147 of the 1961 Act or section 34 of the 1922 Act if the condition precedent to the exercise of the jurisdiction under those sections did not exist
469C D