Tax Officer, Cuttack & Ors Vs. Biju Patnaik  INSC 383 (7 December 1990)
K. Ramaswamy, K. Kuldip Singh (J)
1991 AIR 464 1990 SCR Supl. (3) 488 1991 SCC Supl. (1) 161 JT 1990 (4) 731 1990
Tax Act, 1961: Sections 147 & 148--Condition Precedent for exercise of
jurisdiction by I.T.O.
respondent-assessee was assessed to income tax for the assessment year 1957-58
ending with financial year March 31, 1957.
Subsequently, it came to the notice of the Income Tax Officer that the assessee
had not shown in his return a sum of Rs.15 lakhs which he had earned as capital
gains by the sale of his mining business. According to the assessee, the
transfer of the business had been made on 31.3.1956 and as such the capital
gain was not leviable to taxation since capital gain was not subjected to
taxation in the assessment year 1956-57. But from the information available
with the Income Tax Officer it appeared that the transfer of business took
place on 3.11.1956.
basis of this information the Income Tax Officer, with the approval of the
Commissioner of Income Tax, issued notice to reopen the assessment in question
under sections 147 (a) and 148 of the Income Tax Act, 1961.
challenged the notice by way of writ peti- tion under Article 226 of the
Constitution which was dis- missed by the learned Single Judge. On appeal, the
Division Bench, while upholding the exercise of the power under section 147 (a)
of the Act, held that the income derived by the respondent was towards sale of
goodwill and, therefore, the income was not liable to capital gains tax.
behalf of the assessee it was contended before this Court that
sum received by him was consideration for the transfer of the goodwill of the
business as an ongoing concern;
Income Tax Officer had no reason to be- lieve that the income had escaped
assessment for that year; and
the satisfaction arrived at by the Income-Tax Officer under section 147(a) did
not exist on the facts of the case, and the Income-Tax Officer merely
communicated the notice without complying with the provisions of section 147(a)
read with section 148 of the Act.
Allowing the appeal, setting aside the judgment of the Division Bench and
restoring that of the Single Judge, this Court,
(1) Section 147 (a) of the Income Tax Act postu- lates two conditions, namely,
that the Income-Tax Officer must, on the basis of material facts on record,
prima facie, he satisfied that the income of the assessee is exigible to tax
for that relevant assessment year and that he had reason to believe that it had
escaped assessment. Further, he must have reason to believe that the escapement
of income was on account of the omission or failure of the part of the asses-
see to fully and truly disclose all the material facts necessary for the
assessment. Both the conditions are condi- tions precedent to the exercise of
the jurisdiction under section 147 (a) read with section 148. [492B-C] Calcutta
Discount Co. Ltd. v. I.T.O.,  41 I.T.R. 191 (SC), referred to.
is true that the notice does not prima facie disclose the satisfaction of the
two conditions precedent enjoined under section 147 (a), but in the counter
affidavit fried by the Income-Tax Officer in the High Court, he has stated all
the material facts. It is settled law that in an administrative actium, though
the order does not ex facie disclose the satisfaction by tile Officer of the
necessary facts, but if the record discloses the same, the notice or the order
does not per se become illegal. [492G-493B]
The Division Bench has committed illegality in coming to the conclusion that
the sum of Rs.15,00,000 was received towards consideration for sale of goodwill
of the on-going business. It is premature on the facts and circum- stances in
this case to reach such a decision. Whether assets and goodwill together were
transferred or the good- will alone was transferred as on-going concern of the
mining business is a matter yet to he gone into by the Income-Tax Officer.