Case: SRI KRISHNA PVT. LTD. ETC Vs. INCOME TAX OFFICER AND OTHERS

decisions of this Court in Chhugamal Rajpal Vs. S.P. Chaliha and Others, Income tax Officer, Calcutta and Others Vs. Lakhmani Mewal Das, and The Commissioner of Income Tax, Calcutta Vs. Burlop Dealers Ltd., as laying down propositions contrary to those laid down in Phool Chand Bajranglal (supra). We cannot agree. The principle is well-settled by Calcutta Discount (supra) and it is not reasonable to suggest that any different proposition was sought to be enunciated in the said decisions. Calcutta Discount (supra) emphasises repeatedly the assessees obligation to disclose all material facts necessary for his assessment fully and truly in the context of the two requirements - called conditions precedent which must be satisfied before the ITO gets the jurisdiction to reopen the assessment under s. 147/148. This obligation can neither be ignored nor watered down. Nor can anyone suggest that a false disclosure satisfies the requirement of full and true disclosure. All the requirements stipulated by s. 147 must be given due and equal weight. Finality of proceedings is certainly a consideration but that avails one who has fully and truly disclosed all material facts necessary for his assessment for that year - and not to others. All the decisions relied upon by Sri Gupta have been elaborately discussed and distinguished in Phool Chand Bajranglal (supra) and we fully agree with the same. We think it unnecessary to repeat those reasons. In particular, we agree with the reasons given in Phool Chand Bajranglal (supra) for holding that the decision of this Court in Burlop Dealers (supra) must be confined to the particular fact-situation of that case and that it cannot be construed to be of universal application irrespective of the facts and circumstances of the case before the Court. 8. It is brought to our notice that certain other decisions of this Court have rightly emphasised the requirement of full and true disclosure and have held that failure or omission to do so, legitimately attracts the power under s. 147. In Inspecting Assistant Commissioner of Income Tax Vs. V.I.P. Industries Ltd., , a three-Judge Bench had this to say : After hearing learned counsel for both the parties, we are unable to uphold the order of the High Court. It appears that, subsequently, facts have come to the notice of the IT Department that the facts disclosed in the return are not a true and correct declaration of facts. In that view of the matter, we set aside the order of the High Court passed in Writ Petn. No. 1634 of 1988 with Writ Petn. No. 2919 of 1988 V.I.P. Industries Ltd. Vs. Inspecting Assistant Commissioner and another, ], and send the case back on remand to the ITO for a decision in accordance with law after giving an opportunity of hearing to the parties concerned. The special leave petitions are disposed of. In Central Provinces Manganese Ore Co. Ltd. Vs. I.-T.O., Nagpur, again, this Court observed : The only question which arises for our consideration is as to whether the two conditions required to confer jurisdiction on the ITO under s. 147(a) of the act have been satisfied in this case. The first is that the ITO must have reason to believe that the income chargeable to income tax had been under-assessed and the second that such under-assessment has occurred by reason of omission or failure on the part of the assessee to disclose fully and truly all material facts necessary for its assessment for the year 1953-54. So far as the first condition is concerned, the ITO, in his recorded reasons, has relied upon the fact as found by the Customs authorities that the appellant had under-invoiced the goods it exported. It is no doubt correct that the said finding may not be binding upon the IT authorities but it can be a valid reason to believe that the chargeable income has been under-assessed. The final outcome of the proceedings is not relevant. What is relevant is the existence of reasons to make the ITO believe that there has been under-assessment of the assessees income for a particular year. We are satisfied that the first condition to invoke the jurisdiction of the ITO under s. 147(a) of the act was satisfied. As regards the second condition, the appellant did not produce the books of account kept by them at their head office in London nor the original contracts of sale which were entered into at London with the buyers. The appellant did not produce before the ITO any of the accounts which related to the foreign buyers. No reasons were given for the supply of manganese ore at a rate lower than the market rate. It is for the assessee to disclose all the primary facts before the ITO to enable him to account for the true income of the assessee. The proven charge of under-invoicing per se satisfied the second condition. The appellants assessable income has to be determined on the basis of the price received by it for the goods exported. If the true price has not been disclosed and there was under-invoicing, the logical conclusion prima facie is that there has been failure on the part of the appellant to disclose fully and truly all material facts before the ITO. We are, therefore, satisfied that both the conditions required to attract the provisions of s. 147(a) have been complied with in this case. In Income Tax Officer, Azamgarh and Another Vs. Mewalal Dwarka Prasad, , this Court held that if the notice issued under s. 148 is good in respect of one item, it cannot be quashed under Art. 226 on the ground that it may not be valid in respect of some other items. We need not, however, dilate on this aspect for the reason that no argument has been urged before us to the effect that since the notice under s. 148 is found to be justifiable in respect of some loans disclosed and not with respect to other loans, it is invalid.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]Sec. 139 places an obligation upon every person to furnish voluntarily a return of his total income if such income during the previous year exceeded the maximum amount which is not chargeable to income tax. The obligation so placed involves the further obligation to disclose all material facts necessary for his assessment for that year fully and truly. If at any subsequent point of time, it is found that either on account of an omission or failure of the assessee to file the return or on account of his omission or failure to disclose fully and truly all material facts necessary for his assessment for that year, income chargeable to tax has escaped assessment for that year, the ITO is entitled to reopen the assessment in accordance with the procedure prescribed by the Act. To be more precise, he can issue the notice under s. 148 proposing to reopen the assessment only where he has reason to believe that on account of either the omission or failure on the part of the assessee to file the return or on account of the omission or failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment for that year, income has escaped assessment. The existence of the reason(s) to believe is supposed to be the check, a limitation, upon his power to reopen the assessment. [See the leading decision on this subject in The Barium Chemicals Ltd. and Another Vs. The Company Law Board and Others, Sec. 148(2) imposes a further check upon the said power, viz., the requirement of recording of reasons for such reopening by the ITO. Sec. 151 imposes yet another check upon the said power, viz., the CIT or the Board, as the case may be, has to be satisfied, on the basis of the reasons recorded by the ITO, that it is a fit case for issuance of such a notice. The power conferred upon the ITO by ss. 147 and 148 is thus not an unbridled one. It is hedged in with several safeguards conceived in the interest of eliminating room for abuse of this power by the AOs. The idea was to save the assessees from harassment resulting from mechanical reopening of assessment but this protection avails only those assessees who disclose all material facts truly and fully.In the reasons recorded by the ITO [as required by s. 148(2)], he had stated clearly that in the course of assessment proceedings for the succeeding assessment year, it was found that out of the unsecured hundi loans put forward by the assessee, a large number were found to be bogus and that many of the so-called lenders were found to be near relations of the directors or the principal shareholders. He stated that similar loans are also noticed for the asst. yr. 1959-60 and, therefore, he has reason to believe that there has been no true and full disclosure of all material facts by the assessee for the asst. yr. 1959-60 leading to escapement of income. It is not alleged by the assessee that the ITO had not checked up or tallied the names of the alleged lenders for both the assessment years and that he merely went by the fact that there were unsecured hundi loans for both the assessment years. In the absence of any such allegation - which allegation, if made, could have afforded an opportunity to the ITO to answer the said averment - we must presume that the ITO did find that a large number of alleged lenders who were found to be bogus during the asst. yr. 1960-61 were also put forward as lenders during the asst. yr. 1959-60 as well. Evidently, this is what he meant in the context, when he spoke of similar loans being noticed for the year in question as well. In such a situation, it is impossible to say that the ITO had no reasonable ground to believe that there has been no full and true disclosure of all material facts by the assessee during the relevant assessment year and that on that account, income chargeable to tax had escaped assessment. As we shall emphasise hereinafter, every disclosure is not and cannot be treated to be a true and full disclosure. A disclosure may be a false one or true one. It may be a full disclosure or it may not be. A partial disclosure may very often be a misleading one. What is required is a full and true disclosure of all material facts necessary for making assessment for that year. This calls for an examination of the decisions of this Court analysing and elucidating ss. 147 and 148 of the Act.5. The first and foremost is the decision of the Constitution Bench in Calcutta Discount Company Limited Vs. Income Tax Officer, Companies District, I and Another, The case arose under s. 34 of the IT act [as amended in 1951]. In material particulars, the provisions in s. 34 were similar to those in s. 147. Having regard to the fact that it is the only Constitution Bench decision on the point, it is necessary to examine it in some detail. The Constitution Bench explained the purport of s. 34 in the following word :To confer jurisdiction under this section to issue notice in respect of assessments beyond the period of four years, but within a period of eight years, from the end of the relevant year two conditions have, therefore, to be satisfied. The first is that the ITO must have reason to believe that income, profits or gains chargeable to income tax have been under-assessed. The second is that he must have also reason to believe that such under-assessment has occurred by reason of either (i) omission or failure on the part of an assessee to make a return of his income under s. 22, or (ii) omission or failure on the part of an assessee to disclose fully and truly all material facts necessary for his assessment for that year. Both these conditions are conditions precedent to be satisfied before the ITO could have jurisdiction to issue a notice for the assessment or reassessment beyond the period of four years, but within the period of eight years, from the end of the year in question..... The words used are omission or failure to disclose fully and truly all material facts necessary for his assessment for that year. It postulates a duty on every assessee to disclose fully and truly all material facts necessary for his assessment. What facts are material and necessary for assessment will differ from case to case. In every assessment proceeding, the assessing authority will, for the purpose of computing or determining the proper tax due from an assessee, require to know all the facts which help him in coming to the correct conclusion. From the primary facts in his possession, whether on disclosure by the assessee, or discovered by him on the basis of the facts disclosed, or otherwise, the assessing authority has to draw inferences as regards certain other facts; and ultimately, from the primary facts and the further facts inferred from them, the authority has to draw the proper legal inferences, and ascertain on a correct interpretation of the taxing enactment, the proper tax leviable. Thus, when a question arises whether certain income received by an assessee is capital receipt, or revenue receipt, the assessing authority has to find out what primary facts have been proved, what other facts can be inferred from them, and, taking all these together, to decide what the legal inference should be..... We have, therefore, come to the conclusion that while the duty of the assessee is to disclose fully and truly all primary relevant facts, it does not extend beyond this.In that case, the alleged non-disclosure of material facts fully and truly - to put it in the words of the Court -was the failure of the assessee to disclose the true intention behind the sale of the shares. The assessee had stated during the assessment proceedings that the sale of shares during the relevant assessment years was a casual transaction in the nature of mere change of investment. The ITO found later that those sales were really in the nature of trading transactions. The case of the Revenue was that the assessee ought to have stated that they were trading transactions and that his assertion that they were casual transactions, in the nature of change of investment, amounted to omission or failure to disclose fully and truly all material facts necessary for his assessment for that year within the meaning of s. 34. This contention of the Revenue was rejected holding that the true nature of transaction, being a matter capable of different opinions, is not a material or primary fact but a matter of inference and hence, it cannot be said that there was an omission or failure of the nature contemplated by s. 34 on the part of the assessee. Now, what needs to be emphasised is that the obligation on the assessee to disclose the material facts - or what are called, primary facts - is not a mere disclosure but a disclosure which is full and true. A false disclosure is not a true disclosure. The disclosure must not only be true but must be full - fully and truly. A false assertion, or statement, of material fact, therefore, attracts the jurisdiction of the ITO under s. 34/147. Take this very case : the ITO says that on the basis of investigations and enquiries made during the assessment proceedings relating to the subsequent assessment year, he has come into possession of material, on the basis of which, he has reasons to believe that the assessee had put forward certain bogus and false unsecured hundi loans said to have been taken by him from non-existent persons or his dummies, as the case may be, and that on that account income chargeable to tax has escaped assessment. According to him, this was a false assertion to the knowledge of the assessee. The ITO says that during the assessment relating to subsequent assessment year, similar loans [from some of these very persons] were found to be bogus. On that basis, he seeks to reopen the assessment. It is necessary to remember that we are at the stage of reopening only. The question is whether, in the above circumstances, the assessee can say, with any justification, that he had fully and truly disclosed the material facts necessary for his assessment for that year. Having created and recorded bogus entries of loans, with what face can the assessee say that he had truly and fully disclosed all material facts necessary for his assessment for that year. True it is that ITO could have investigated the truth of the said assertion - which he actually did in the subsequent assessment year - but that does not relieve the assessee of his obligation, placed upon him by the statute, to disclose fully and truly all material facts. Indubitably, whether a loan, alleged to have been taken by the assessee, is true or false, is a material fact - and not an inference, factual or legal, to be drawn from given facts. In this case, it is shown to us that ten persons [who are alleged to have advanced loans to the assessee in a total sum of Rs. 3,80,000 out of the total hundi loans of Rs. 8,53,298] were established to be bogus persons or mere name lenders in the assessment proceedings relating to the subsequent assessment year. Does it not furnish a reasonable ground for the ITO to believe that on account of the failure - indeed not a mere failure but a positive design to mislead - of the assessee to disclose all material facts, fully and truly, necessary for his assessment for that year, income has escaped assessment ? We are of the firm opinion that it does. It is necessary to reiterate that we are now at the stage of the validity of the notice under s. 148/147. The enquiry at this stage is only to see whether there are reasonable grounds for the ITO to believe and not whether the omission/failure and the escapement of income is established. It is necessary to keep this distinction in mind.We cannot agree. The principle is well-settled by Calcutta Discount (supra) and it is not reasonable to suggest that any different proposition was sought to be enunciated in the said decisions. Calcutta Discount (supra) emphasises repeatedly the assessees obligation to disclose all material facts necessary for his assessment fully and truly in the context of the two requirements - called conditions precedent which must be satisfied before the ITO gets the jurisdiction to reopen the assessment under s. 147/148. This obligation can neither be ignored nor watered down. Nor can anyone suggest that a false disclosure satisfies the requirement of full and true disclosure. All the requirements stipulated by s. 147 must be given due and equal weight. Finality of proceedings is certainly a consideration but that avails one who has fully and truly disclosed all material facts necessary for his assessment for that year - and not to others. All the decisions relied upon by Sri Gupta have been elaborately discussed and distinguished in Phool Chand Bajranglal (supra) and we fully agree with the same. We think it unnecessary to repeat those reasons. In particular, we agree with the reasons given in Phool Chand Bajranglal (supra) for holding that the decision of this Court in Burlop Dealers (supra) must be confined to the particular fact-situation of that case and that it cannot be construed to be of universal application irrespective of the facts and circumstances of the case before the Court.8. It is brought to our notice that certain other decisions of this Court have rightly emphasised the requirement of full and true disclosure and have held that failure or omission to do so, legitimately attracts the power under s. 147. In Inspecting Assistant Commissioner of Income Tax Vs. V.I.P. Industries Ltd., , a three-Judge Bench had this to say :After hearing learned counsel for both the parties, we are unable to uphold the order of the High Court. It appears that, subsequently, facts have come to the notice of the IT Department that the facts disclosed in the return are not a true and correct declaration of facts. In that view of the matter, we set aside the order of the High Court passed in Writ Petn. No. 1634 of 1988 with Writ Petn. No. 2919 of 1988 V.I.P. Industries Ltd. Vs. Inspecting Assistant Commissioner and another, ], and send the case back on remand to the ITO for a decision in accordance with law after giving an opportunity of hearing to the parties concerned.The special leave petitions are disposed of.In Income Tax Officer, Azamgarh and Another Vs. Mewalal Dwarka Prasad, , this Court held that if the notice issued under s. 148 is good in respect of one item, it cannot be quashed under Art. 226 on the ground that it may not be valid in respect of some other items. We need not, however, dilate on this aspect for the reason that no argument has been urged before us to the effect that since the notice under s. 148 is found to be justifiable in respect of some loans disclosed and not with respect to other loans, it is invalid.