JUDGMENT [ENTITY], J.
1. This is an application, inter alia, challenging the notices issued under [SECTION] of the [ACT] (hereinafter referred to as "the said Act"), for the assessment years 1985-86 to 1989-90.
2. The application was moved before this court on September 26, 1994, when her Lordship [ENTITY] J., was pleased to direct that the Income-tax Officer will be at liberty to proceed with the hearing of the notice under [SECTION] of the said Act and pass a final order but the same shall not be given effect to or communicated to the petitioner till January 15, 1995, or until further orders of this court whichever is earlier.
3. The directions for affidavits were also given and the affidavits have been filed and the matter has come before this court for final hearing.
4. The facts of the case briefly are as follows :
The respondents issued five notices all dated July 29, 1994, under [SECTION] of the said Act for reopening the assessment under [SECTION] of the said Act for the assessment years 1985-86 to 1989-90.
The petitioner is carrying on its business of commissioning of plant for treatment of industrial wastage, effluents and for softening of water. According to the petitioner, the petitioner was assessed for the assessment years 1985-86 to 1989-90 under [SECTION] and also under [SECTION] of the said Act. The petitioner was treated by the respondents as an "industrial company", The Income-tax Officer (hereinafter referred to as "the ITO"), who had the jurisdiction over the petitioner-company being satisfied allowed the deduction under [SECTION] of the said Act up to the assessment year 1987-88. The claim for deductions made under [SECTION], under [SECTION], under [SECTION] were also allowed for the assessment years 1988-89 and 1989-90.
The appeals were preferred and finally the Income-tax Appellate Tribunal dismissed the appeal for the assessment years 1985-86 and 1986-87 and appeals for the assessment years 1988-89 and 1989-90 were preferred firstly, but since the deductions under [SECTION] and [SECTION] of the said Act were allowed, no appeal was preferred.
The case of the petitioner that there was no omission or failure on the part of the petitioner to disclose fully or truly all material facts necessary for claiming deduction and all primary facts relating to the drawing legal inference by the Income-tax Officer, were before him. Accordingly, it is submitted that all proceedings for reopening the assessments are illegal, invalid and without jurisdiction.
5. Dr. [ENTITY] appearing on behalf of the petitioner, relied upon a judgment reported in [PRECEDENT] , and contended that the conditions precedent to the exercise of jurisdiction under [SECTION] of the [ACT], did not exist. Therefore, the Income-tax Officer had no jurisdiction to issue the impugned notices under [SECTION] in respect of the assessment years after the expiry of four years. He also relied upon another judgment reported in [PRECEDENT] , and contended that there was no failure to disclose any material facts for the purpose of the assessment, so far as the loss arising from the bonus shares was concerned, [SECTION] could not be invoked and the notice must be struck down.
6. His further contention that mere change of opinion cannot be a valid ground for reopening an assessment under [SECTION] of the [ACT]. In support of such submission he relied upon a judgment reported in [PRECEDENT] . He further relied upon another judgment reported in [PRECEDENT] , and contended that all the primary facts for the purpose of the assessment were disclosed by the assessee and on those facts the Income-tax Officer who made the assessment was satisfied that the method of valuation adopted by the assessee was the correct method. Subsequently, a different view cannot be taken in respect of the method of valuation adopted by the assessee declaring the same as an incorrect method.
7. Therefore, the reopening of the proceeding under [SECTION] and issue of notices under [SECTION] for the assessment years were not valid. He also relied upon judgments reported in [PRECEDENT]T ; [PRECEDENT] and /. [PRECEDENT] , on the same point. He further contended that the circulars issued by the Central Board of Revenue would be binding on all officers and persons employed in the execution of the [ACT] and in support of his submission he relied upon a judgment reported in [PRECEDENT] .
8. He further contended that the reasons are not relevant for the reopening of assessment as the reasons have no rational connection or relevant bearing on the formation of the belief. Rational connection postulates that there shall be a direct nexus or live link between the material coming to the notice of the Income-tax Officer and the formation of his belief that there has been escapement of income of the assessee from assessment in the particular year because of his failure to disclose fully and truly all material facts. In support of such submission, he relied upon a judgment reported in [PRECEDENT] . He also relied upon another judgment reported in [PRECEDENT] . He also contended that the notice itself was bad in law, there was no reason to carry on with the futile exercise of completion of reassessment proceedings. In support of such submission, he relied upon a judgment reported in [PRECEDENT]T . He lastly contended that if the Income-tax Officer did not have any jurisdiction to issue the impugned notices, the writ court can always interfere irrespective of the fact whether the assessment pursuant to such notice has been made or not. In support of such submission he also relied upon a judgment reported in [PRECEDENT] .
9. Learned counsel appearing on behalf of the respondents contended before me that this writ petition is not maintainable on the ground that there is an alternative remedy and a more satisfactory solution is available on the terms of the statute itself. He relied upon a judgment reported in [PRECEDENT], , in support of such contention.
10. He further relied upon another judgment reported in [PRECEDENT] , and submitted that the Supreme Court has categorically held that an article used in [SECTION] and [SECTION] refers only to moveable assets and the word "manufacture or construction of an article" cannot be extended to construction of road, building and bridge, etc. Accordingly, he submitted that the ratio of the decision would also apply to the provisions of [SECTION] of the said Act. According to him, the said decision has also been reaffirmed by the Supreme Court in the case of [PRECEDENT]. Under these facts and circumstances of this case, he submitted that the petitioner has failed to disclose truly and faithfully before the Income-tax Officer. He also relied upon another judgment reported in [PRECEDENT] , and submitted that the petitioner has enough opportunity to explain his case before the Assessing Officer. He further contended in these circumstances that the Assessing Officer has reason to believe that the income has escaped assessment and as such the notice has been issued by the Assessing Officer and accordingly he submitted that the said notice is valid, legal and the same is sustainable in law.
11. After considering the facts and circumstances of this case, I do not have any doubt in my mind that the petitioner has ample opportunity to come before the authority as the interim order has specifically stated that the Income-tax Officer shall proceed in the matter and also pass a final order but the same shall not be given effect to or communicated to the petitioner till January 15, 1995, or until further orders of this court whichever is earlier. As it appears in this matter time for passing of final order has also expired. The petitioner had ample opportunity to place its facts before the Assessing Officer. I further do not have hesitation to come to the conclusion as has been held by the Supreme Court in a case reported in [PRECEDENT], where the Supreme Court held that the court should not probe into the details at this stage and further after coming through the facts and circumstances of this case I do not find that the Assessing Officer has been issued the said notice without any jurisdiction. Therefore, the notice that has been issued by the Assessing Officer is legal and valid. I further do not have hesitation to hold that the court at this stage shall not probe into the matter in respect of the reason to issue the said notice as has been held by the apex court. It further appears to me that since at the time of moving of this application her Lordship [ENTITY] J., had already given authority to the Income-tax Officer to proceed with the hearing of the notice, it would be proper for me at this stage to direct the Assessing Officer to pass the order and to communicate the same to the petitioner within three weeks from date in accordance with the order passed by her Lordship [ENTITY] J. The petitioner shall be at liberty to take such steps in the matter as may be advised in accordance with law before the appropriate forum.
12. For the reasons stated hereinabove, this application is thus disposed of.