Sabyasachi Mukharji, J. In this reference under Section 256(1) of the I.T. Act, 1961, the following questions have been referred to this court: Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the provisions of the Indian Income-tax Act, 1922, were not saved for the purpose of completing the assessment under Section 23(4) of the Indian Income-tax Act, 1922, after April 1, 1962, in a case where a notice under Section 22(2) has been validly served prior to that date but no return had been filed and in that view cancelling the order under Section 23(4) for the assessment year 1961-62 ? Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the provisions of the Income-tax Act, 1961, were not applicable and the order under Section 23(4) of the Indian Income-tax Act, 1922, could not be sustained as having been passed u section 144 of the Income-tax Act, 1961 ? Whether, on the facts and in the circumstances of the case, the Tribunal was justified in law in holding that the validity of the ex parte order could be decided upon in the appeal against the order under Section 27 of the Indian Income-tax Act, 1922 ? Whether, on the facts and in the circumstances of the case, the Tribunal was justified in cancelling the penalties under Section 271(1)(a) 273(a) of the Income-tax Act, 1961 ? In order to appreciate the questions, we have to refer to certain facts.

The above questions arose out of the assessment for the assessment year 1961-62.

It is important to bear in mind a few dates before we go to the controversy.

A notice under Section 22(2) of the Indian I.T. Act, 1922, was served on the assessee on the 10th June, 1961.

On the 1st April, 1962, the I.T. Act, 1961, came into operation.

It is the case of the ITO, in his assessment order, that pursuant to the notice under Section 22(2), the return was not furnished by the assessee.

For filing the return, from time to time, reminders were given to the assessee but without any effect.

A notice under Section 28(3) of the Indian I.T. Act, 1922, was also issued in November, 1961.

But this was also not complied with.

Ever since July, 1965, it was further stated by the ITO in his order, that efforts were made to find out whether the claim made on behalf of the firm that due to disputes among the partners it was not possible to file the return of income was correct or not.

Ultimately after the examination of witnesses and examination of whatever papers and documents available, the ITO could gather otherwise, that the assessment was made under Section 23(4) of the Indian I.T. Act, 1922, on 9th March, 1960 (sic).

After considering the various incomes in various sets of books, the ITO computed the total income at Rs. 52,98,996.

He also initiated proceedings under Section 271(1)(a), (b) and (c) and also under Section 273(a) of the I.T. Act, 1961.

Thereafter, the assessee filed a petition under Section 27 of the Indian I.T. Act, 1922, and considering the points urged, it was held by the ITO in its order, that no sufficient cause had been made out and as a result the application under Section 27 was rejected.

The matter was taken up in appeal by the assessee, both with regard to the order under Section 27 as well as the assessment made under Section 23(4) of the Indian I.T. Act, 1922, before the AAC.

It was urged in the appeal against the order under Section 27 that the assessment was bad in law as it was completed under Section 23(4) at a time when the old Act stood repealed.

It was urged, Section 297(2) of the I.T. Act, 1961, indicated an intention that Section 6(e) of the General Clauses Act would not be applicable.

This argument was accepted by the AAC and he held that the ITO was not justified in making the assessment under Section 23(4) of the Indian I.T. Act, 1922.

According to the Appellate Tribunal, the AAC had not specifically said whether the provisions of the new Act were applicable to the case and whether the ITO could make an assessment under the new Act.

In any event, however, the AAC held that Section 6 of the General Clauses Act would not save the application of the old Act in the facts and circumstances of the instant case.

The AAC, accordingly, cancelled the assessment under Section 23(4) of the 1922 Act and directed the ITO to make fresh assessment according to law.

This order, he passed in the appeal against the rejection order under Section 27 of the Indian I.T. Act, 1922.

In the appeal against the order under Section 23(4), the AAC was of the view that the same had become infructuous and ordered the filing of the proceedings.

Consequently, he also cancelled the penalty order passed by the ITO under Section 271(1)(a) and Section 273 of the I.T. Act, 1961.

He, however, had not gone specifically into the merits of these orders.

The Revenue, being aggrieved, went up in appeal before the Appellate Tribunal against all these orders.

There, various contentions were urged.

It was contended that, even if it was necessary, the order might be treated as an order under Section 144 of the I.T. Act, 1961, and whether the ITO had the jurisdiction or not, the reference to a wrong section would not make the exercise of the power invalid.

Reliance was also placed for this proposition on certain authorities of the Supreme Court.

It is not necessary for us to go into the details of the arguments advanced before the Tribunal as well as to the findings of the Income-tax Appellate Tribunal.

The Tribunal was, however, of the view that the old Act was repealed and in the contingency that had happened, Section 297(2) could not save the old provisions and there was contrary intention expressed in Section 297 which indicated that Section 6 of the General Clauses Act would not be applicable to save the pending proceedings in the instant case.

The Appellate Tribunal, therefore, held that the AAC was right in holding that the assessments were wrongly made under Section 23(4) of the Indian I.T. Act, 1922.

As to the contention that the AAC was incompetent to go into the validity of the order in an appeal against the order under Section 27, the Tribunal was unable to accept this contention urged on behalf of the Revenue.

In the premises, according to the Tribunal, the action of the AAC was justified.

The Tribunal, therefore, dismissed the departmental appeal.

As a result of this order, four questions, indicated above, have been referred to this court.

The basic question, in our opinion, is whether the assessment could have been made under Section 23(4) of the Indian I.T. Act, 1922, in the facts and circumstances of the case, after 1st April, 1962.

This involves the examination of the effect of Section 6 of the General Clauses Act read in conjunction with the intention of the Legislature as evidenced in Section 297 of the I.T. Act, 1961.

This question has been examined in several decisions of the Supreme Court as well as in different High Courts.

The first decision to which we must refer is the decision in the case of Kalawati Devi Harlalka v. CIT .

It is not necessary, in view of the fact that this case was analysed in other decisions, to recapitulate in detail the facts of that case.

What had happened in that case was that assessments were made on 7th February, 1961, on the assessee for the assessment years 1952-53 to 1960-61 under the Indian I.T. Act, 1922, and on 24th January, 1963, after the repeal of the said Act by the I.T. Act, 1961, the Commissioner had issued a notice under Section 33B of the Act of 1922, to revise these assessments.

It was held that the Commissioner had jurisdiction to issue the notices under Section 33B of the 1922 Act in view of Section 297(2) of the Act of 1961, and paragraph 4 of the I.T. (Removal of difficulties) Order, 1962.

The expression assessment was to be construed in as wide a language as was possible.

There, at pp.

690-691 of the report, the Supreme Court enunciated the principles which would be applicable in the present controversy, which are as follows : It is quite clear from the authorities cited above that the word assessment can bear a very comprehensive meaning it can comprehend the whole procedure for ascertaining and imposing liability upon the taxpayer.

Is there then anything in the context of Section 297 which compels us to give to the expression procedure for the assessment the narrower meaning suggested by the learned counsel for the appellant ? In our view, the answer to this question must be in the negative.

It seems to us that Section 297 is meant to provide, as far as possible, for all contingencies which may arise out of the repeal of the 1922 Act.

It deals with pending appeals, revisions, etc.

It deals with non-completed assessments pending at the commencement of the 1961 Act, and assessments to be made after the commencement of the 1961 Act, as a result of returns of income filed after the commencement of the 1961 Act.

Then in Clause (d) it deals with assessments in respect of escaped income in Clauses (f) and (g) it deals with levy of penalties Clause (h) continues the effect of elections or declarations made under the 1922 Act Clause (i) deals with refunds Clause (j) deals with recovery Clause (k) deals generally with all agreements, notifications, orders issued under the 1922 Act Clause (1) continues the notifications issued under Section 60(1) of the 1922 Act, and Clause (m) guards against the application of a longer period of limitation prescribed under the 1961 Act to certain applications, appeals, etc.

It is hardly believable in this context that Parliament did not think of appeals and revisions in respect of assessment orders already made or which it had authorised to be made under Clause (a) of Section 297(2).

The learned counsel for the appellant submits that Parliament had Section 6 of the General Clauses Act in view, and, therefore, no express provision was made dealing with appeals and revisions, etc.

In our view, Section 6 of the General Clauses Act would not apply because Section 297(2) evidences an intention to the contrary.

In Union of India v. Madan Gopal Kabra , while interpreting Section 13 of the Finance Act, 1950, already extracted above, this court observed at page 68 : Nor can Section 6 of the General Clauses Act, 1897, serve to keep alive the liability to pay tax on the income of the year 1949-50 assuming it to have accrued under the repealed State law, for a different intention clearly appears in Sections 2 and 13 of the Finance Act read together as indicated above.

It is true that whether a different intention appears or not, must depend on the language and content of Section 297(2).

It seems to us, however, that by providing for so many matters mentioned above, some in accord with what would have been the result under Section 6 of the General Clauses Act and some contrary to what would have been the result under Section 6, Parliament has clearly evidenced an intention to the contrary, Therefore, the principles that emerge are that, normally, pending proceedings are generally saved by the operation of Section 6 of the General Clauses Act.

When, however, a different intention appears from the repealed provision, then the proceedings cannot be said to be saved.

Whether a different intention appears or not in the facts and circumstances of controversy must depend on the language and contents of Section 297(2).

The Supreme Court, in that case, held that by providing for so many matters, some in accord with what would have been the result under Section 6 of the General Clauses Act and some contrary to what would have been the result under Section 6, Parliament had expressed the intention of reopening an assessment made under the old Act, and thereby had clearly evidenced an intention to the contrary.

The aforesaid principle enunciated by the Supreme Court was again reviewed by the Supreme Court in the case of T.S. Baliah v. T.S. Rangachari, ITO .

There, the court was concerned with Section 52 of the Indian I.T. Act, 1922.

The provisions of Section 52 of the Indian I.T. Act, 1922, did not alter the nature or quality of the offence indicated, according to the Supreme Court, in Section 177 of the Indian Penal Code but they merely provided a new course of procedure for what was already an offence.

There was no repugnancy or inconsistency.

The two enactments could stand together and must be treated as cumulative in effect.

The Supreme Court was of the view that in enacting Section 297(2) of the I.T. Act, 1961, it was not the intention of Parliament to take away the right of instituting the proceedings in respect of which proceedings were pending on the commencement of the Act.

Parliament had not made, according to the Supreme Court, any detailed provision for the institution of proceedings or prosecution in respect of any offence under the 1922 Act.

Section 6(e) of the General Clauses Act applied for the condonation of such proceedings after the repeal of the Indian I.T. Act, 1922, and a legal proceeding in respect of an offence committed under the 1922 Act might be instituted after the repeal of the Act by the 1961 Act and punishment might be imposed as if the repealing Act had not been passed.

The Supreme Court had observed at p. 793 of the report that the principle of Section 6 of the General Clauses Act was that unless a different intention appeared in the repealing Act, any legal proceedings could be instituted and continued in respect of any matter pending under the repealed Act, as if that Act was in force at the time of the repeal.

When the repeal is followed by a fresh legislation on the same subject, the court would undoubtedly have to look to the provisions of the new Act but only for the purpose of determining whether the provision indicated a different intention.

The question is, according to the Supreme Court, not whether the new Act expressly kept alive old rights and liabilities but whether it manifests an intention to destroy them.

Section 6 of the General Clauses Act, therefore, would be applicable unless the new legislation manifests an intention, incompatible with or contrary to the provision of this section.

Such an incompatibility would have to be ascertained from a consideration of all the relevant provisions of the new statute and the mere absence of a saving clause would by itself not be material.

The Supreme Court noted that it was true that there was no express sub-clause in Section 297(2) of the Act of 1961, which provided for a condonation of such proceedings, that is, the proceedings under Section 52 of the Indian I.T. Act, 1922, but Parliament did not intend that Section 297(2) of the 1961 Act would be completely exhaustive and with regard to such matters as were not expressly saved by Section 297(2), the provisions of Section 6(e) of the General Clauses Act would be applicable.

In the case Tiwari Kanhaiyalal v. CIT 1975 100 ITR 5, the Supreme Court had to consider Section 28(4) of the Indian I.T. Act, 1922, which provided that no prosecution for an offence against this Act shall be instituted in respect of the same facts on which a penalty has been imposed under this section did not, according to the Supreme Court, bar the institution of a prosecution for an offence against the 1922 Act or the 1961 Act, when penalty had been imposed not under Section 28(1) of the 1922 Act, but under Section 271(1) of the 1961 Act.

Section 28(4) did not obliterate the factum of commission of an offence under Section 52 of the 1922 Act and did not transmute the offence into an innocent act because of the imposition of the penalty under Section 28 of the 1922 Act.

Such an imposition merely barred the prosecution for trial and conviction for the commission of an offence.

Where penalty was imposed under Section 271(1) of the 1961 Act, launching of the prosecution became permissible and was not hit by Article 20(1) of the Constitution of India.

The accused would be entitled to rely upon Article 20(1) only to the extent of the awarding of a lesser punishment under Section 52 of the 1922 Act.

Where a false statement was made in a declaration or in a return submitted under the 1922 Act prior to the coming into operation of the 1961 Act, it was not correct to take recourse to Section 297(2)(h) of the 1961 Act to make the offence come under Section 277 of the 1961 Act.

There, the Supreme Court referred to the observations of Ramaswamy J., in the case of T.S. Baliah v. T.S. Rangachari, ITO and reiterated the same principle.

The question with which we are now faced, that is to say, whether the assessment under Section 23(4) or in respect of which a notice had been issued under Section 22(2) prior to the coming into operation of the new Act, came up for consideration before the Division Bench of the Delhi High Court after coming into operation of the new Act in the case of Amolak Singh Jain v. CIT 1971 31 Tax (1)-120 (Delhi).

There, Chief Justice Khanna, speaking for the Division Bench of the Delhi High Court, observed that Section 6 of the General Clauses Act naturally enabled the institution and continuation of the legal proceedings in respect of any matter pending under the repealed Act as if that Act was in force subsequent to the repeal unless a different intention appeared in the repealing Act.

Where the repeal was followed by a fresh legislation on the same subject, the Delhi High Court was of the view that the court would undoubtedly have to look to the provisions of the new Act but only for the purpose of determining whether this indicated a different intention.

The question is not whether the new Act expressly kept alive the old rights and liabilities but whether it manifested an intention to destroy these.

Section 6 of the General Clauses Act, therefore, would be applicable unless the new legislation manifested any intention incompatible with or contrary to the provisions of the section.

Such incompatibility would have to be ascertained from a consideration of all relevant provisions of the new statute and the mere absence of a saving clause would, by itself, not be material.

In other words, the provisions of Section 6 of the General Clauses Act would apply to the case of a repeal even if there was a simultaneous re-enactment unless a contrary intention can be gathered from the new statute.

Where, under Section 22(2) of the Indian I.T. Act, 1922, as well as under Section 22(4) of the said Act, a notice had been issued by the ITO to the assessee before the coming into operation of the new Act, it was held that the ITO could continue and complete the proceedings of assessment under the 1922 Act.

As we have said before, the ratio of the said decision would be applicable to the facts and circumstances of the instant case.

But while we are on this aspect, it would be appropriate to refer to a single Bench decision of mine in the case of Amarnath Mehra v. ITO , where I held that where the assessee did not file his return of income within 30th September under Section 139(2) of the I.T. Act, 1961, even though the assessee had the privilege of filing its return before the completion of the assessment up to 31st March, 1961, the notice issued to the assessee under Section 147 of the Act before March, 1961, would be a valid notice.

Failure to file the return, it was observed by me, within the time mentioned under Section 139(2) would attract the provisions of Section 147(a) of the Act.

Learned advocate for the assessee sought to urge that the principle enunciated in the aforesaid decision of mine would be contrary to the view taken by Khanna C.J., in the decision referred to hereinbefore.

According to learned advocate for the assessee, the facts of the instant case before us would come within the purview of Sub-clause (ii) of Section 297(2)(d) of the I.T. Act, 1961.

In this case also the learned advocate for the assessee contended that the income chargeable to tax had escaped assessment within the meaning of that expression in Section 147 which stipulated that if the ITO had reason to believe that, by reason of the omission or failure on the part of an assessee to make a return under Section 139 for any assessment year, he could take action under Section 148, and no proceedings under Section 34 of the repealed Act in respect of any such income were pending at the commencement of this Act, a notice under Section 148 could be issued with respect to that assessment year.

Therefore, according to learned advocate for the assessee, the moment there was a failure to file the return on the expiry of the time required for filing the return, there was an escapement in the assessment of income and, therefore, Section 147 would be applicable and in this case as no notice under Section 34 of the old Act had been issued, action could not have been taken under Section 297(2)(d)(ii).

Therefore, there was a contrary intention, according to learned advocate for the assessee, expressed in the aforesaid Sub-clause (vi) of s, 297(2)(d) of the Act, which ousted the operation of the provisions of the General Clauses Act.

We are, however, unable to accept this contention.

The expressions income not assessed and income escaping assessment are not synonymous expressions.

In the case of Rajendranath Mukerjee v. CIT 1934 2 ITR 71 (PC) the Judicial Committee had observed that if an assessment was not made on income within the tax year then that income could not be said to have escaped assessment.

The Judicial Committee noted that a reading of the expression has escaped assessment as equivalent to has not been assessed could not be assented to.

According to the Judicial Committee, it gave too narrow a meaning to the word assessment and too wide a meaning to the word escaped.

Now, Section 147 of the 1961 Act requires the formation of an opinion by the ITO that income had escaped assessment and that opinion may be formed by reason of an omission or failure to file a return or otherwise as mentioned in Clause (a) or Clause (b) of Section 147 of the Act.

But in a case where the time to file the return had expired and notice had been issued to the assessee to file the return and proceedings for assessment pursuant to that notice were pending, unless the proceedings had been terminated either by an assessment or the completion of the proceedings, it could not be said, merely on the failure of the assessee to file the return, that income had escaped assessment by reason of the failure or omission to file the return within time.

This view, which, in our (sic) is the correct view, was first expressed in the observations of the unreported decision of this court in Income-tax Reference Number 128 of 1961, Haji Mohamed Mian v. CIT, judgment delivered on 23rd February, 1965, the observations in respect of which were approved by the Supreme Court in the case of CIT v. Bidhu Bhusan Sarkar .

There the Supreme Court again reiterated the principle that where the proceedings for an assessment were pending and action under Section 34 of the Indian I.T. Act, 1922, had to be taken for not filing the return by the assessee, such action could be taken by the ITO, and, in this connection, reliance was placed on the aforesaid observations of the Division Bench of the Calcutta High Court, which we have just referred to hereinbefore.

So far as the decision in the case of Amarnath Mehra v. ITO , the controversy was not whether when proceedings were pending it can be said that income had escaped assessment and such proceedings for reopening under Section 147 could be taken or not.

The controversy was, where the time to file the return was at the option of the assessee, i.e., up to four years, when the assessment was not completed even though the time to file the return under Section 139(2) had expired, whether action could be taken by the ITO under Section 147.

There, I had held that Section 139(2) imposed an obligation on the assessee to file the return within the time mentioned.

Failure to file the return within the time mentioned in Section 139(2) would attract the jurisdiction of Clause (a) of Section 147 of the Act of 1961.

I further observed that this was an additional privilege given to the assessee under Sub-section (4) of Section 139 and that would not defeat the right of the ITO to issue the notice on the failure of the assessee to file the return within the time mentioned under Sub-section (2) of Section 139 of the Act.

Now, in the scheme of Section 139 of the I.T. Act, 1961, under Sub-section (1) the assessee was obliged to file the return within the time prescribed for the different contingencies.

Sub-section (2) of Section 139 gives the right to the ITO to issue a notice to file the return.

Sub-section (4) of Section 139 gives the assessee an option before an assessment is made to furnish a return for any previous year at the end of the period specified in Clause (b) and the provisions of Sub-section (8) shall apply in every such case.

What was argued before me in the Single Bench decision, referred to hereinbefore, was whether a notice under Section 147 could be issued even in a case where the time to file the return had expired under Section 139(2) of the Act.

It is not quite clear whether the court really dealt with Section 147 or Section 139(2) of the I.T. Act, because there is no reference as to whether, in fact, any notice under Section 139(2) had been issued or not or whether any proceedings were pending, It was not canvassed before the court that where a notice under Section 139(2) had been issued and a proceeding had been initiated, unless the said proceedings had been terminated by assessment or otherwise, whether notice under Section 147 could be issued at all or not.

That was not the controversy there.

The controversy was solely whether before the expiry of the time a fresh notice could be issued, subject to the fulfilment of other conditions for the issue of a notice under Section 147 of the Act.

In that view of the matter, we are of the opinion that it cannot be said that the view taken in the said decision in the case of Amarnath Mehra v. ITO , is in any way in conflict with the views expressed by the Division Bench of the Delhi High Court in the decision referred to hereinbefore.

On the question that unless the proceedings taken for assessment had been terminated by assessment or otherwise, fresh proceedings under Section 147 could not be taken, reference may be made to the observations of the Supreme Court in the case of CIT v. Bidhu Bhusan Sarkar , which we have already referred to and the observation of the Supreme Court in the case of Ghanshyamdas v. Regional Assistant Commissioner of Sales Tax .

There, the Supreme Court was dealing with the C.P. Berar Sales Tax Act, 1947.

There the Supreme Court observed that the rules laid down in the judgments relating to the income-tax that the words escaping assessment applied equally to cases where a notice was received by the assessee but resulted in no assessment at all and to cases where due to any reason no notice was issued to the assessee and, therefore, there was no assessment of his income, was applicable to assessments of turnover tax under the C.P. Berar Sales Tax Act, 1947.

The Supreme Court further observed that if assessment proceedings had been initiated, income could not be said to have escaped assessment until a final order of assessment was passed on the pending proceedings.

In this connection, the Supreme Court referred to the observations of the Judicial Committee in the case of Rajendranath Mukerjee v. CIT 1934 2 ITR 71 (PC), referred to hereinbefore.

In this connection reference may also be made to the observations of the Supreme Court in the case of CIT v. Raman Chettiar .

In the case of State of Assam v. D.C. Choudhuri 1970 76 ITR 706, the Supreme Court was concerned with the Assam Agrl.

I.T. Act, 1939, and was of the view that if the assessee did not file a return of his agricultural income pursuant to a general notice under Section 19(1) of the Assam Agrl.

I.T. Act, 1939, the assessment could be made only after due notice under Section 19(2) or by initiating proceedings under Section 30 for assessing income escaping assessment.

The Agrl.

ITO could not proceed directly to assess to the best of his judgment under Section 20(4) without serving notice under Section 19(2) within the financial year or by having resort to the provisions of Section 30.

The basic principle underlined by these decisions is this : Normally pending proceedings would be saved unless a contrary provision is expressed by the repealing Act.

It is necessary to refer to the specific provision of the repealing Act to see if there is a contrary provision expressed.

If, on the other hand, there is a contrary intention expressed by dealing with a particular contingency contemplated in the repealing Act itself, then by a normal user of the power given by the appropriate provision of the repealing Act it could be said that there was no provision made in the repealing Act indicating a contrary intention to repeal the provisions of the old Act, so far as those Acts were contemplated.

In this case, it was argued that Section 297 dealt with all the possible contingencies, in the case of an assessment.

These are Clauses (a), (b), (c) and (d) of Sub-section (2) of Section 297.

In this connection, on behalf of the Revenue reliance was placed on a Division Bench decision of this court in the case of CIT v. B.P. (India) Limited 1979 116 ITR 440, where, agreeing with all the decisions of the Supreme Court we found that the purpose and effect of Section 25(3) of the 1922 Act was clearly to give relief to a taxpayer, who, but for it, would, in the aggregate, be charged with tax once in respect of every years income and twice in respect of one years income, because, under the 1918 Act, the tax was levied on the income of the year in which the assessment was made, whereas under the 1922 Act, the tax was on the income of the previous year, and we felt that in the 1961 Act, there was no provision in Section 297 which dealt with this contingency and as it appeared to us from the report of the Commission that there was no contrary intention sought to be expressed by the absence of the similar provisions in Section 297 of the Act.

We held that the Tribunal was right in holding that the relief claimed by the assessee under Section 25(3) of the Indian I.T. Act, 1922, even though the relief was granted after the coming into operation of the 1961 Act, was justified.

More or less, the same view was expressed by us in the decision in the case of Imperial Chemical Industries Limited v. CIT .

There we had also noted that in certain cases the Legislature had chosen to use the expression may in contradistinction to shall in the different clauses of Section 297(2) of the Act and where it was so done the expression may should be construed in the light that it was only a permissive power.

In the case of Chhogmal Agarwalla v. ITO , we had held that Section 35(5) of the Indian I.T. Act, 1922, enabled the reopening and rectifying of the completed assessment of a partner on the assessment of the firm.

It dealt primarily with the rectification proceeding for the assessment of a partner but that power was dependent upon the assessment or reassessment of the firm.

The power was given to rectify the assessment of a partner on the assessment or reassessment of a firm only on a proper assessment or reassessment of the firm in accordance with law and that the assessment, if, in a particular case, had to be under the Act of 1922, then it had to be under the Act of 1922.

If, however, the assessment of a firm had to be made under the 1961 Act, because of Section 297(2)(a) of the 1961 Act, then the power of rectification could be utilised on the proper assessment or reassessment of the firm in accordance with the provisions of the Act of 1961.

Therefore, where an assessment on a firm for the year 1961-62 had been made under the 1961 Act, as the return had been filed after 1st April, 1962, in view of the provisions of Section 297(2)(b) of the 1961 Act, the power to rectify the assessment of a partner of the firm could be exercised under Section 35(5) of the Act of 1922, and even where a notice of reassessment was purported to have been issued under the Act of 1961, it could be treated as a notice in exercise of the powers under the Act of 1922.

The two Division Benches of different High Courts, viz., the High Court of Punjab and Haryana and the High Court of Rajasthan, have accepted the Revenues contention on this aspect in a different light.

In the case of Indra Company v. Union of India 1967 64 ITR 664, the Rajasthan High Court referred to Section 297(2)(k) to save the provisions of this nature.

In view of the expression used in Clause (a), Sub-section (2) of Section 297, in the facts and circumstances of our case, and in the view we have taken on the other aspect of the matter, it is not necessary for us to rest our decision on the construction of Clause (a) of Section 297(2) of the Act.

Reliance was also placed on the decision of the Punjab and Haryana High Court in the case of CIT v. Bipan Lal Kuthiala 1972 83 ITR 182.

There also the Punjab and Haryana High Court had relied on the provisions of Section 297(2)(k) in saving pending proceedings.

Reliance was placed on the decision of the Rajasthan High Court, which we have referred to hereinbefore.

For the reasons we have mentioned before, it is also not necessary for us to place any reliance for the purpose of our present controversy on Clause (a) of Section 297(2) of the Act.

Our attention was drawn to a Bench decision of this court in the case of CIT v. Bidhu Bhusan Sarcar 1966 59 ITR 590, where the Division Bench of this court held that the judgment of the Calcutta High Court on a reference under Section 66 of the Indian I.T. Act, 1922, would be governed in matters of appeal from that decision or order to the Supreme Court by the provisions of the repealed Act.

In respect of such matter, the provisions of Section 261 of the Act were not attracted.

The Division Bench observed at p. 596 of the report that the effect of the repeal of an enactment was as if it had never existed except as to matters and transactions past and closed, in the absence of any saving clause which manifested or implied a different intention.

If particular matters were kept alive by the saving clause, the repealed enactment was treated for all purposes as alive in respect of such matters.

The saving clauses contained in Sub-section (2) of Section 297 did indicate a different intention as contemplated by Section 6 of the General Clauses Act and ousted the operation of the general provisions contained in Section 6 with the result that Section 66A(2) of the Act which was completely obliterated by reason of the provision for repeal contained in Sub-section (1) of Section 297 of the new Act could not be availed of by the petitioner for the purpose of initiating the proceeding for a certificate for appeal to the Supreme Court as contemplated in Section 66A(2) of the Act.

Now, so far as the general principles on the construction and effect of the repealing provisions under Section 6 of the General Clauses Act are concerned, there cannot be any exception to the view expressed by the Division Bench of this court in the aforesaid decision.

But we may incidentally point out to another Division Bench decision of this court in the case of CIT v. Allahabad Bank Limited 1966 62 ITR 476, where a contrary view was taken on the construction of Section 66A(2) of the Indian I.T. Act, 1922, read with Section 297(2) of the I.T. Act, 1961 on this aspect.

We are, however, not concerned with the controversy in the present case and we need not express any opinion as to which of the decisions on this aspect is correct.

As the basic principles are well settled the question is, therefore, to find out whether Section 297(2) expresses any contrary intention to the effect that the provisions of Section 6 of the General Clauses Act would not be applicable.

If the repealing Act has made detailed provisions for a specific contingency concerned then, and then only, could it be said that by the repealing Act the Legislature has expressed a contrary intention.

In this case the situation with which we are faced is that a proceeding under the old Act had been initiated by issuing a notice under Section 22(2) of the Act on 10th of June, 1961, prior to the coming into operation of the new Act.

The said proceeding was continuing, as the ITO was trying by issuing reminders, etc., to complete the said proceeding.

The said proceeding when the new Act came into operation had not been completed either by assessment or by closing the proceeding.

In such a case could it be said that either Clauses (a) (b), (c) or (d) of Section 297(2) of the Act covers the situation ? On behalf of the assessee it was contended that Clause (d) of Section 297(2) would be applicable.

It was urged that inasmuch as there was a failure to file the return within the time stipulated either under Section 22(1) or Section 22(2) the provisions of Section 147 were attracted when the new Act had come into effect because notice under Section 34 of the old Act had not been issued.

Therefore, the Legislature had contemplated such a situation by not using the power under Sub-clause (d) of Clause (2) of Section 297.

The Revenue cannot resort to the provisions of the General Clauses Act when an express contrary intention has been expressed by the Legislature in this case by making a specific provision.

This argument, in our opinion, cannot be accepted for reasons more than one, firstly, as we have mentioned before, under the law, the proceeding has been initiated, that is to say, a notice has been issued under Section 22(2) of the 1922 Act without terminating the proceeding, that is to say, either by closing the proceeding or dropping the proceeding or making the assessment on a best judgment under Section 23(4) of the said Act.

Therefore, under Section 34 of the old Act or Section 147 of the new Act it could not have been taken.

Therefore, a situation of this nature had been contemplated (sic).

Furthermore, merely because in a certain case an additional power of reopening is given, in our opinion, it does not exhaust the power of the ITO to complete the pending proceedings which he would otherwise have under Section 6 of the General Clauses Act.

There is no contrary intention by the grant of this express power in Clause (d) of Section 297(2) of the Act.

We have further to remember that even under the old Act while there was the power under Section 22(2) to issue a notice on failure of the assessee to make the return within time under Section 23(4) simultaneously, there was the power of Section 34 of the old Act to reopen the assessment.

The existence of both these powers was not destructive of each other.

Similarly, the existence of the power under Section 23(4) to complete the pending proceeding by issuing a notice under Section 22(2) of the Act is not destructive of the power if the condition or otherwise is fulfilled and if the contingency arises to be utilised under Clause (d) of Section 297(2).

In that view of the matter, in our opinion, the AAC as well as the Tribunal were in error in holding that the proceedings could not be completed under the old Act in the facts and circumstances of this case.

If that is the position then question Number (i) must be answered in the negative and in favour of the Revenue.

We also answer the second question by saying that the Tribunal was not justified in holding that the order under Section 23(4) could not be made.

The other aspect of the question does not, in the view we have already expressed, arise.

This question is also answered in favour of the Revenue.

So far as question Number (iii) is concerned, it appears to us that the view taken by the AAC that the assessment order was bad, having been under Section 27(2) of the old Act after the coming into operation of the new Act, was incorrect for the reasons mentioned hereinbefore.

In any event, in an appeal under Section 27 of the 1922 Act, the AAC was not competent to go into the validity of the assessment.

He, however, directed that the assessment would be made afresh in accordance with law.

The order of the AAC was incorrect in law.

The Tribunal in disposing of the appeal may direct the ITO to consider the appeal under Section 27 on its merits, that is to say, whether sufficient cause has been made out, and dispose of the appeal under Section 27 of the Indian I.T. Act, 1922, in accordance with law.

The question is answered in the manner as aforesaid in favour of the Revenue with the aforesaid direction.

If the appeal under Section 27 before the AAC is rejected, this will not preclude the Tribunal from directing the AAC for considering the merits of the quantum appeal, but we make it clear that the validity of the power to make the assessment under the old Act could not as such be questioned.

So far as question Number (iv) is concerned, the Tribunal was not justified in cancelling the penalties under Section 271(1)(a) and Section 273(a) of the I.T. Act, 1961, on the grounds it has shown.

But neither the AAC nor the Tribunal have considered the merits of the said appeal.

In disposing of the appeal the Tribunal would be at liberty to consider the merits of the order imposing the penalties.

This question is answered in the manner as aforesaid and by saying that so far as question Number (iv) is concerned, we say, penalty was exigible in law, but as to whether the penalty should be imposed, and the quantum thereof, the Tribunal or the AAC will have to consider them on merits.

In the facts and circumstances of this case, each party will pay and bear its own costs.

Sudhindra Mohan Guha, J. I agree.

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The Court : the subject-matter of challenge in this appeal is a judgment and order dated 14th June, 2013 by which the learned appellate Tribunal dismissed the appeal preferred by the revenue agreeing with the views expressed by the CIT (Appeal).

The revenue has come up in appeal before this Court.

The question for consideration was whether the CIT (Appeal) erred in deleting the disallowance of interest to the tune of Rs.45,93,522/- under Section 14A of the Income Tax Act which was determined by the assessing officer applying Rule 8D. The reasoning offered by the CIT (Appeal) was that all the investments were continuing from the year before the previous year and there was as such no fresh investment.

To be precise, the views appearing from the impugned judgment and order are as follows: Simultaneously the ld.

AR of the assessee has shown that the assessees investment as on 31.03.2007 was Rs.6,81,08,966/- which was reduced to Rs.6,56,92,865/-.

Thus there was not fresh investment in shares by the assessee during the year under consideration.

The ld.

AR therefore submitted that at best the disallowance of interest can be made out of interest attributable to the loan of Rs.27,68,247/-.

Hence the ld.

CIT(A) was justified in making the proportionate disallowance out of the interest expenditure of Rs.17,00,042/- on the loan of Rs.27,68,247/-.

The ld.

DR could not controvert the above submissions of the ld.

AR of the assessee.

The ld.

DR also could not point out any specific error in the order of the ld.

CIT(A) by bringing any cogent and positive material.

In absence of such evidence being brought on record we do not find any good and justifiable reason to interfere with the order of the ld.

CIT(A) which is confirmed and the grounds of appeal of the Revenue are dismissed.

During hearing in this Court Mr. Khaitan, learned Senior Advocate, on our request, produced a copy of the paper book filed before the learned Tribunal.

The paper book was given to Mrs. Gutgutia for examination.

After examining the papers including the balance-sheet appearing from the paper book she submitted that from Schedule-I to the balance-sheet, it would appear that a sum of Rs.6,55,22,980/- was shown in the asset side by way of share application money.

She contended that it is not, therefore, correct to say that there was no fresh investment.

Mr. Khaitan, learned Senior Advocate contended that share application money was never treated as investment.

Considering that the point raised by Mrs. Gutgutia was not considered either by the CIT (Appeal) or by the learned tribunal, we deem it proper to remand the matter to the assessing officer for considering the aforesaid matter.

It is made clear that we should not be deemed to have expressed any opinion as to whether the share application money does or does not amount the investment.

This question will also be taken into account by them and they shall decide the same in accordance with law.

Needless to mention, that the impugned judgment and order including the orders passed by the CIT (Appeal) and the assessing officer are all set aside on this limited aspect of the matter.

(GIRISH CHANDRA GUPTA, J.) (DR.

MRINAL KANTI CHAUDHURI, J.) A section

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IN THE HIGH COURT AT CALCUTTA Special Jurisdiction (Income Tax) ORIGINAL SIDE ITA Number201 of 2007 Commissioner of Income Tax, Kolkata-II Versus Brentwood Investments Limitd BEFORE: The Honble JUSTICE I.P. MUKERJI AND The Honble JUSTICE AMRITA SINHA Date : June 27, 2018 Appearance: Mr. J. P. Khaitan, Sr.

Mr. Pramit Bag, Adv.

Mr. A. K. Dey, Adv.

Mr. M. P. Agarwal, Adv.

Ms. Smita Das De, Adv.

The Court : This is an appeal under Section 260A of the Income Tax Act, 1961.

More than 10 years ago, on 9th April, 2007 this appeal was admitted by a Division Bench of this Court to be heard on the following substantial questions of law: Whether, in the circumstances of the case, the Income tax Appellate Tribunal is correct in restricting the disallowance of interest to Rs.8,12,926/- only out of interest of Rs.3,29,43,952 claimed in view of the fact that the interest pertaining to the money lending business, as stated by the assessee before the Assessing Officer and the Commissioner of Income Tax (Appeals) amounted to Rs.38,75,246/- only and the balance interest pertaining to acquisition of shares held as investment and dealing shares, income from dividend being exempt under section 10(33) of the Income Tax Act and the interest paid for acquisition of shares inadmissible in terms of section 14A of the act? Whether, on the facts and in the circumstances of the case, the order of the Tribunal deleting Rs.9,12,926 being provision for NPA (non-performing assets) is erroneous in view of the decision of the Honble Madras High Court in case of the T.N. Power Finance Infrastructure Corp. Limited 491 as the provision is not allowable as a bad debt according to provisions of the Income Tax Act,l 1961, section 36(1(vii)? As far as the second question is concerned, most fairly, Mr. Khaitan, learned Sr. Advocate for the assessee, concedes that the issue is covered in favour of the Revenue by the Supreme Court in Southern Technologies Limited V. Joint Commissioner of Income Tax, reported in 2010 320 ITR 577 (SC).

We answer the question in the affirmative in favour of the Revenue and against the assessee.

As far as question Number1 is concerned, we find that the Tribunal had no difficuly in understanding the law, namely, that expenses could not be claimed as a deduction from income which was exempted from taxation or was not exigible to tax.

From the formulation of the question by the order dated 9th April, 2007, it appears that the greivance of the Revenue is misapplication of the law by the tribunal.

We do not think this is a substantial question of law at all.

There is no dispute or misunderstanding with regard to the law.

For those reasons, we do not think it proper to interfere with the finding of the Tribunal with regard to the issue covered by question Number1.

Mr. Agarwal, learned Advocate for the Revenue, proposed to introduce a third issue.

He said that this question was sought to be raised in Court at the time of admission of the appeal.

This particular question was not accepted by the Court.

The question is set out below: Whether, on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal was correct in holding that the provisions of Explanation below Section 73 of the Income Tax Act, 1961, were not attracted in the case of the assessee.

The records do not show that this issue was considered by the Court at the time of admission of the appeal.

Hence the question of res judicata does not apply.

The proviso to Section 260A, sub-Section (4) provides that nothing shall be deemed to take away or abridge the power of the court to hear, for reasons to be recorded, the appeal on any other substantial question of law not formulated by it, if it is satisfied that the case involved such question.

Mr. Agarwal was on the explanation to Section 73 of the Income Tax Act, 1961.

He stated that if any part of the business of the company was of a nature other than those stipulated in the explanation, such company shall for the purposes of the section be deemed to be carrying on speculation business, if it dealt with the purchase and sale of shares of other companies.

He contended that the assessee was carrying on the kind of speculative business contemplated in the section.

He relied upon a Division Bench of this Court in R.P.G. Industries Limited vs Commissioner of Income-Tax and Another reported in 2011 338 ITR 313 (Cal).

Therefore, any speculation loss concerning the assessees business could be adjusted against income from a similar kind of business and not from any other business.

Mr. Khaitan, learned Senior Advocate, shows us the judgment of the Tribunal where it was specifically observed that the income of the assessee from dealing with shares etc.

did not result in any loss.

Hence, there was no question of adjustment of this loss against any other head of income from the business which was not speculative in nature.

Hence, although the proposition of law formulated by Mr. Agarwal is absolutely correct, it is inapplicable to the facts of this case.

In those circumstances, this 260A appeal is partly allowed by answering question number2 in favour of the revenue and against the assessee.

No order as to costs.

P. MUKERJI, J.) (AMRITA SINHA, J.) CS

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The Court : We have heard the learned counsel for the parties.

Service has been effected on the assessee.

Mr. Mazumdar, learned counsel appearing for the respondent-assessee, waives service of notice of appeal.

We admit the appeal on the following substantial questions of law: Whether on the facts and in the circumstances of the case the learned Tribunal was justified in law in dismissing the appeal of the revenue by relying upon the decision of the Honble Bombay High Court in the case of M section Allana Cold Storage Limited -vs- I.T.O. (2006) 206 CTR 401 (Bom), holding, inter-alia, that since it was the mandatory duty of the Assessing Officer to furnish the reasons with regard to the re-opening of the assessment under Section 147 of the Income Tax Act, the Assessing Officer had failed to provide the reasons to the assessee.

ii) Whether on the facts and in the circumstances of the case the Tribunal was justified in law to dismiss the appeal on the ground on non-furnishing the reasons recorded for re-opening of the case.

By consent of the learned counsel for the parties, we take up both the appeal and the stay petition together for hearing dispensing with the requirement of compliance of regular formalities for making the appeal ready.

The dispute arises out of proceedings initiated for re-assessment on the ground of income escaping assessment.

The assessee was successful before the Commissioner of Income Tax (Appeals) and the matter was carried up in appeal before the Income Tax Appellate Tribunal.

The Tribunal in its decision confirmed the order of the Commissioner of Income Tax.

The only ground on which the Tribunal decided the issue in favour of the assessee was that no reason was communicated to the assessee for initiating proceedings under Section 147/148 of the Income Tax Act, 1961.

Needless to add, the order was passed in a scrutiny assessment under Section 143(3) of the Act.

Ms. Das De, learned counsel appearing for the Revenue has argued that the obligation on the part of the income tax authorities to furnish reasons arises only if the assessee seeks such reasons.

According to her, this is apparent from sub-section (2) of Section 148 of the Act.

Her interpretation of the aforesaid provision is that for issue of notice under Section 148, the obligation of the Assessing Officer is to record reasons.

But there is no mandate for communicating the reason without any request from the assessee.

This proposition of law is not really disputed by Mr. Mazumdar, learned counsel for the assessee.

The Honble Supreme Court in the case of GKN Driveshafts (India) Limited vs Income Tad Officer Ors., reported in 259 ITR 19, has held :- We see no justifiable reason to interfere with the order under challenge.

However, we clarify that when a notice under section 148 of the Income-tax Act is issued, the proper course of action for the noticee is to file a return and if he so desires, to seek reasons for issuing notices.

The Assessing Officer is bound to furnish reasons within a reasonable time.

On receipt of reasons, the noticee is entitled to file objections to issuance of notice and the Assessing Officer is bound to dispose of the same by passing a speaking order.

In the instant case, as the reasons have been disclosed in these proceedings, the Assessing Officer has to dispose of the objections, if filed, by passing a speaking order, before proceeding with the assessment in respect of the abovesaid five assessment years.

Mr. Mazumdars submission, however, is that the assessee had made request for reasons, but in spite of such request, the same was not furnished.

This submission of Mr. Mazumdar will appear from the following passage of the order of the Tribunal.

At the outset, it was observed that assessee has challenged the legality and validity of assessment framed u section 147 of the Act on the ground that no reasons for reopening whatsoever has been communicated to assessee.

AR further submitted that several requests for the reasons for the reopening the assessment u s 147 of the Act was made but no details were submitted by AO.

We also find that Ld.

DR also failed to bring anything on record to controvert the argument made by A O and also the finding of Ld.

CIT(A).

The Revenues case on the other hand is that no such request was made and the records forming part of this appeal do not reveal any finding on the part of any of the statutory fora that request to that effect was made.

From the aforesaid passage of the Tribunals order, quoted above, it appears to us that submission by the Revenue on that count was made before it, but there is no finding to that effect.

In such circumstances, we are of the view that the Tribunal ought to re-examine the question as to whether the assessee had made any request for reasons as contemplated in Section 148(2) of the Act prior to passing the re-assessment order under Section 143(3)/147 of the Act.

On the basis of that finding, fresh decision shall be taken by the Tribunal.

We, accordingly, set aside the decision of the Tribunal and remand the matter to the Tribunal for a decision on this limited point.

No other point has been urged before us by the learned counsel for the parties.

The appeal is allowed in the above terms and the matter is remanded to the Tribunal.

Both the appeal and the stay petition stand disposed of accordingly.

(ANIRUDDHA BOSE, J.) (SHIVAKANT PRASAD, J.) sm

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WP 477 OF 2019 IN THE HIGH COURT AT CALCUTTA Constitutional Writ Jurisdiction ORIGINAL SIDE THE PEERLESS GENERAL FINANCE AND INVESTMENT COMPANY LIMITED Versus ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-3(1), KOL ORS.

BEFORE: The Honble JUSTICE SHAMPA SARKAR Date : 17th October, 2019.

Appearance: Mr. Abhijit Chatterjee, Sr.

Mr. Gopal Ram Sharma, Adv.

for the petitioner The Court : Despite service, none appears for the respondents.

The writ petitioner company has filed this writ petition for a direction upon the respondents i.e. the income tax authorities to recall and or cancel the notice dated March 31, 2019 and order dated September 3, 2019, which are Annexure P-14 and P-19 to the writ petition.

An interim order has also been prayed for restraining the authorities from giving further effect to the above notices.

It is the contention of the petitioner that the order dated September 3, 2019 suffers from non-application of mind and has been issued mechanically without considering the rebuttal filed by the petitioner by its letter dated August 26, 2019 pursuant to the notice dated March 31, 2019 issued under Section 148 of the Income Tax Act 1961 (hereinafter referred to as the said Act).

The first contention of the petitioner is that the notice dated March 31, 2019 and the order dated September 3, 2019 do not satisfy the first proviso to Section 147 of the said Act.

It is contended that the incomes allegedly which had escaped assessment, according to the authorities, were a part of the assessment for the assessment year 2015-16.

The authorities were made aware of such position by the petitioner in the answer to the notice issued under Section 148 of the said Act.

It is further contended that pursuant to a notice received under scrutiny assessment for the assessment year 2012-13, the petitioner by a letter dated January 21, 2015 had already answered the queries with regard to the advance received by the petitioner for sale of the flats mentioned in the notices during the assessment year 2012-13.

The petitioner in the said letter had categorically explained why the said advance received against the said flats had not been accounted for in the return for the assessment year 2012-13 but in stead was accounted for in the return filed for the assessment year 2015-16.

Under such circumstances, it is further contended by the petitioner that the petitioner had under no circumstances failed to disclose any facts relating to the notice issued by the authorities with regard to income which had allegedly escaped assessment.

The petitioner relies on the decision of India Steamship Co. Limited Versus Jt.

Commissioner of Income-tax reported in 2005 275 ITR 155 (Calcutta) and submits that it is a well-settled principle of law that unless the assessee failed to disclose the facts fully and truly necessary for assessment with regard to which the notices have been issued, the income tax authorities did not assume jurisdiction under the law to reopen such assessment after a period of four years.

The relevant portion of the judgment relied upon by the petitioner is quoted below :- It would be seen from the above recorded reasons that there is no allegation whatsoever of any nature of any fact not being disclosed by the assessee in any of the assessments.

From the said recorded reasons, it is evident that on account of the changed view of the Assessing Officer in the assessment year 1998-99, the said proceedings have been sought to be reopened.

Thus it is evident from the recorded reasons that the basic condition namely of any alleged escapement on account of omission or failure to disclose the material facts by the assessee does not exist in the instant case.

In the case of Calcutta Discount Company Limited 1961 41 ITR 191, the apex court held as hereunder (page 199) : 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 Income-tax Officer 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 Section 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 Income-tax Officer 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.

(emphasis supplied) At page 201 of the Reports it as held as under : Does the duty, however, extend beyond the full and truthful disclosure of all primary facts? In our opinion, the answer to this question must be in the negative.

Once all the primary facts are before the assessing authority, he requires no further assistance by way of disclosure.

It is for him to decide what inference of facts can be reasonably drawn and what legal inference have ultimately to be drawn.

It is not for somebody else -far less the assessee - to tell the assessing authority what inferences, whether of facts or law, should be drawn.

Indeed, when it is remembered that people often differ as regards what inferences should be drawn from given facts, it will be meaningless to demand that the assessee must disclose what inferences whether of facts or law - he would draw from the primary facts.

(emphasis supplied) The above contention of the petitioner was already on record before the income tax authorities.

Moreover, the same income which has been termed as escaped income for the assessment year 2012-13 was a subject matter of challenge before the appellate authority under the said Act in a different proceeding.

The appellate authority had upheld the contention of the petitioner before it with regard to the computation of the said income as income from capital gains and an income not from business and profession.

It is thus contended that there could be no reason for the authorities to come to a conclusion that the income had escaped assessment or that the petitioner had failed to fully and truly disclose all material facts for assessment and an arguable case has been made out by the petitioner.

This matter requires to be heard on affidavits.

Let affidavit-in-opposition be filed within a week after re-opening reply thereto, if any, within a week thereafter.

The authorities shall not proceed with the re-assessment up to November 30, 2019.

Learned Advocate for the petitioner is directed to communicate this order to the respondents as also the learned Advocate who had appeared for the respondents.

The matter will appear before the Regular Bench two weeks after re- opening of Puja Vacation.

(SHAMPA SARKAR, J.) Dey S.De

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