High Court
Case Details
ITA 30/2011 BEFORE THE HON’BLE MR.JUSTICE I.A. ANSARI THE HON’BLE MRS JUSTICE ANIMA HAZARIKA This is an appeal, preferred under Section 260A of the Income Tax Act, 1961, (he reinafter referred to as, ’the IT Act’) against the order, dated 03.06.2011, pas sed, in ITA No.138(Gau) of 2007, by the learned Income Tax (Appellate) Tribunal, Guwahati Bench, whereby the learned Tribunal has allowed the appeal of the asse sse-respondent and quashed the re-assessment order, dated 10.03.2005, made under Section 147 read with Section 148 of the IT Act, the ground for setting aside a nd quashing the re-assessment order being that the re-assessment was not in acco rdance with law, the same having been barred by the proviso to Section 147 of th e IT Act. This appeal has been admitted and heard on the following substantial que 2. stions of law: (cid:28)1. was justified and correct in law in quashing the reassessment order passed by th e Assessing Officer U/s.143(3)/147 of the Income Tax Act, 1961 on the ground tha t the reassessment proceeding initiated was barred by limitation? Whether on the facts and in the circumstances of the case, the Tribunal 2. Whether on the facts and in the circumstances of the case, the Tribunal was justified and correct in law in quashing the reassessment order passed under section 147 of the Income Tax Act, 1961? (cid:29)
Legal Reasoning
3. We have heard Mr. A. Hazarika, learned Standing Counsel, Income Tax Depa rtment, for the appellant, and Mr. R. Goenka, learned counsel, for the responden t. Considering the fact that both the substantial questions of law, formula 4. ted in this appeal, are inter-woven and insevereably connected with each other, we take up both these questions for decision together. 5. Presenting the case on behalf of the appellant, Mr. A. Hazarika, learned Standing counsel, submits that in the case at hand, though a period of four yea rs had elapsed from the date of making of the assessment, the power of re-assess ment was correctly exercised by the Assessing Officer inasmuch as the assessee h ad not included, in the total income of the assessee, the amount of transport su bsidy, which had been received during the assessment year and thereby the assess ee had been granted greater reliefs than what the assessee was entitled to and, hence, Sub-Clause (iii) of Clause (c) of Explanation 2 was attracted to the fact s of the present case and the contention of the assessee that the materials, pla ced by him before the Assessing Officer, contained the information that the asse ssee had received transport subsidy during the assessment year was not sufficien t to deny to the Assessing Officer the jurisdiction to re-open the assessment in asmuch as Explanation 1, according to Mr. Hazarika, makes it clear that producti on before the Assessing Officer of account books or other evidence from which ma terial evidence could, with due diligence, have discovered by the Assessing Offi cer will not necessarily amount to disclosure within the meaning of Section 147, would not be attracted to the facts of the present case. 6. In support of his above submissions, Mr. Hazarika places reliance on Hon da Siel Power Products Ltd. Vs. Deputy Commissioner of Income Tax and another, r eported in (2012) 340 ITR 53 (Delhi). 7. Resisting the appeal, Mr. R. Goenka, learned counsel, has submitted that unless there is an omission or failure, on the part of an assessee, to disclose ’fully and truly’ all material facts necessary for his assessment, for that ass essment year, an Assessing Officer does not acquire jurisdiction to re-open an a ssessment already made if a period of four years has elapsed since the date of m aking of the assessment and merely because of the fact that by omission to make correct assessment, an assessee has received greater reliefs than what the asses see was entitled to, it would not give jurisdiction to the Assessing Officer to re-open an assessment inasmuch as Sub-Clause (iii) of Clause (c) of Explanation 2 and/or Explanation 1 does not enlarge the scope of the proviso to Section 147. In other words, according to Mr. Goenka, re-opening of the assessment, which st ands barred, because of the expiry of the prescribed period of limitation of fou r years from the date of making of the assessment is impermissible unless it can be held that there was an omission or failure, on the part of the assessee, to disclose ’fully and truly’ all material facts necessary for his assessment, for that assessment year. In support of his submissions, Mr. Goenka places reliance on Associated Stone Industries Ltd. Vs. CIT, Rajasthan, reported in (1997) 224 I TR 560 (SC), Calcutta Discount Company Ltd. Vs. ITO, Companies District, I, and another, reported in (1961) 411 ITR 191 (SC), Parashuram Pottery Works Vs. ITO, reported in 106 ITR 1(SC), Assam Co. Ltd Vs. Union of India, reported in 275 ITR 609 (Gau), and Dulichand Singhania Vs. ACIT, 269 ITR 192 (P & H). 8. Before we proceed to determine the correctness and/or validity of the le arned Tribunal’s order, which stands impugned in the present appeal, it is appro priate to take note of the material facts, which have given rise to the present appeal. The material facts may, in brief, be set out as under: The respondent-assessee submitted its return of income, for the assessme (i) nt year 1997-1998, declaring total taxable income as NIL. The respondent-assesse e was accordingly assessed by the Assessing Officer by his order, dated 05.05.99 , in exercise of power under Section 143(3) of the IT Act. The period of four ye ars from the date of the original assessment, as stipulated by Section 147 of th e IT Act, expired on 31.03.2002. Thereafter, a notice, dated 28.11.2003, under S ection 148 of the IT Act, was issued by the Revenue to the assessee for initiati on of a re-assessment proceeding. Responding to the notice, dated 28.11.2003, th e assessee submitted its reply, on 31.12.2003, contending therein to the effect, inter alia, that the assessee’s return, already filed on 27.11.1997, for the as sessment year 1997-1998, be treated as the return filed pursuant to the notice u nder Section 148 of the IT Act. (ii) The assessee was, however, re-assessed, on 10.03.2005, under Section 147 of the IT Act, adding thereby an amount of Rs.24,70,559/-, which the assessee h ad received as transport subsidy, for the assessment year 1997, holding the said sum of transport subsidy as taxable income of the assessee. (iii) Aggrieved by the re-opening of the assessment and imposition of the tax, the assessee preferred an appeal, which the Commissioner of Income Tax (Appeal) dismissed, on 26.03.2007, upholding the order of the Assessing Officer by taking the view that there were valid reasons for the Assessing Officer to re-open the assessment and that his action was justified. (iv) Dissatisfied with the dismissal of its appeal, the assessee carried the mat ter, in appeal, to the Income Tax (Appellate) Tribunal, Guwahati Bench. By its order, dated 03.06.2011, as the learned Tribunal has quashed the re-assessment o rder holding that the re-opening of the assessment beyond the period of four yea rs was, in the facts and circumstances, not in accordance with law, the Revenue has preferred this appeal contending to the effect that in the facts and attendi ng circumstances of the present case, the re-opening of the assessment ought not to have been treated as untenable in law. 9. Considering the fact that correct interpretation of Explanations 1 and 2 to the proviso to Section 147 of the IT Act lies at the root of controversy in the present appeal, as can be clearly discerned from the substantial questions o f law framed in the present appeal, we reproduce hereinbelow Section 147, which, we notice, reads as under: (cid:28)INCOME ESCAPING ASSESSMENT If the Assessing Officer has reason to believe that any income chargeable to tax has escaped assessment for any assessment year, he may, subject to the provisio ns of section 148 to 153 ,assess or reassess such income and also any other inco me chargeable to tax which has escaped assessment and which comes to his notice subsequently in the course of the proceeding under this section , or recomputed the loss or the depreciation allowance or any other allowance, as the case amy b e, for the assessment year concerned (herein after in this section and in sectio n 148 to 153 referred to as the relevant assessment year) Provided that where an assessment under sub section (3) of section 143 or this s ection has been made for the relevant assessment year, no action shall be taken under this section after the expiry of four years from the end of the relevant a ssessment year, unless any income chargeable to tax has escaped assessment for s uch assessment year by reason of the failure on the part of the assessee to mak e a return under section 139 or in response to a notice issued under sub- sectio n (1) of section 142 or section 148 or to disclose ’fully and truly’ all materia l facts necessary for his assessment, for that assessment year Explanation 1.- production before the Assessing Officer of account books or othe r evidence from which material evidence could with due diligence have been disco vered by the Assessing Officer will not necessarily amount to disclosure within the meaning of the forgoing proviso. Explanation 2.- For the purpose of this section, the following shall also be dee med to be cases where income chargeable to tax has escaped assessment, namely:- (c) where an assessment has been made, but:- (i) (ii) (iii) ; or (iv) is Act has been computed. (cid:29) Income chargeable to tax has been underassessed;or Such income has been assessed at too low a rate; or Such income has been made the subject of excessive relief under this Act Excessive loss or depreciation allowance or any other allowance under th (Emphasis is added) 10. A careful reading of Section 147, as a whole, shows that if the Assessin g Officer has reason to believe that any income, chargeable to tax, has escaped assessment in any assessment year, he may, subject to the provisions of Section 147, assess or re-assess such income and also any other income chargeable to ta x, which has escaped assessment and which comes to his notice subsequently in th e course of the proceeding under Section 147, or recompute the loss or the depre ciation allowance or any other allowance, as the case may be, for the assessment year concerned. 11. To the power of re-opening of an assessment, under Section 147, on the g round that an income, chargeable to tax, had escaped assessment for a given asse ssment year, the first proviso to Section 147 carves out an exception, the excep tion, in the simplest of words, being that no action shall be taken, that is to say, no assessment shall be re-opened by an Assessing Officer by taking resort t o his power under Section 147 if a period of four years from the end of the rele vant assessment year has elapsed unless any income, chargeable to tax, has, as t he proviso to Section 147 stipulates, escaped assessment for such assessment yea r by reason of failure, on the part of the assessee, to disclose ’fully and trul y’ all material facts necessary for his assessment. 12. Explanation 1 to the proviso to Section 147 clarifies that the mere fact , that an Assessing Officer could have, with due diligence, discovered the escap ement of assessment from the materials produced before him by the assessee, shal l not ’necessarily’ amount to disclosure within the meaning of Section 147. 13. The use of the expression ’necessarily’, appearing in Explanation 1, imp lies that it would depend on the facts of a given case if Explanation 1 can be s aid to have been attracted. Conversely speaking, Explanation 1 will not condone lapse on the part of an Assessing Officer, who, due to his sheer recklessness or negligence, omits to take note of an income, which was, otherwise, chargeable a nd had been ’fully and truly’ disclosed by the assessee. Sub-Clause (iii) of Clause (c) of Explanation 2, which, in the present c 14. ase, the Revenue relies upon, shows that where the income, which had escaped ass essment, led to excessive granting of relief, which an assessee was not, otherwi se, entitled to, then, such an income can be reopened for assessment. The questi on is: Does Sub-Clause (iii) of Clause (c) of Explanation 2 allow an assessment to be re-opened merely because excessive relief had been received by an assessee , because of escapement of assessment? Here, again, the mere fact that there was granting of excessive relief to the assessee would not allow an assessment to b e re-opened unless granting of excessive relief can be attributed to the failure , on the part of the assessee, to disclose ’fully and truly’ all material facts necessary for his assessment. 15. To put it a little differently, the conditions precedent for re-opening of an assessment, as contemplated by the proviso to Section 147, is that a taxab le income had escaped assessment because of the failure, on the part of the asse ssee, to disclose ’fully and truly’ all material facts necessary for his assessm ent. 16. The question, therefore, which, now, naturally arises is: whether the E xplanation 1 and/or the Explanation 2 override the conditions precedent, embodie d in the proviso to Section 147, for the purpose of re-opening of an assessment? In Associated Stone Industries Ltd. Vs. CIT, Rajasthan, reported in (199 17. 7) 224 ITR 560 (SC), the Supreme Court has pointed out that the duty of an asses see is only to ’fully and truly’ disclose all material facts and that the expre ssion, ’material facts’, appearing in Section 34(1)(a) of the IT Act, refers onl y to primary facts meaning thereby that the duty of the assessee is only to ’ful ly and truly’ disclose all primary facts and that there is no duty, which the la w casts on an assessee to indicate to the Assessing Officer or draw attention of the Assessing Officer what factual, legal or other interferences can be drawn f rom the already available primary facts disclosed by the assessee. 18. Having analysed the provisions contained in Section 34(1)(a) of the IT A ct embodying scheme of opening of an assessment, the Supreme Court, in Associate d Stone Industries Ltd. (supra), referring to the Income Tax Act, 1922, pointed out that Section 34(1)(a) requires two conditions to be satisfied, namely, (1) t he Income Tax Officer should have reason to believe that income has escaped asse ssment; and (2) he must have reason to believe that such escapement is by reason of the omission or failure, on the part of the assessee, to disclose ’fully and truly’ all material facts necessary for his assessment for the relevant year. L aying down, thus, the law on the scope of re-opening of assessment, the Supreme Court observed and held, in Associated Stone Industries Ltd. (supra), as under: (cid:28)It is now well settled by the decisions of this court that the duty of the asse ssee is only to fully and truly disclose all material facts. The expression (cid:28)mat erial facts (cid:29) contained in section 34(1)(a) of the Act refers only to primary fac ts, and the duty of the assessee is to disclose such primary facts. There is no duty cast on the assessee to indicate or draw the attention of the Income-tax Of ficer what factual or legal, or other inferences can be drawn from the primary f acts disclosed (cid:29). (Emphasis is added) 19. In support of its above conclusions, the Supreme Court referred to, and relied upon, its decision, in Calcutta Discount Company Ltd. Vs. ITO, Companies District, I, and another, reported in (1961) 411 ITR 191 (SC), wherein the Const itution Bench had observed as under: (cid:28)The words used are (cid:28)omission or failure to disclose ’fully and truly’ all mater ial facts necessary for his assessment for that year. (cid:29) It postulates a duty on e very assessee to disclose ’fully and truly’ all material facts necessary for his assessment. What facts are material and necessary for assessment will differ fr om case to case (cid:29) is is added) 20. Having posed to itself the question as to whether the duty of disclosure , on the part of an assessee, extends beyond the full and truthful disclosure of all primary facts, the Supreme Court observed, in Calcutta Discount Company Ltd . (supra), that the answer to this question must be in the negative and so long as the primary facts are before the Assessing Authority, he requires no further assistance by way of disclosure from the end of the assessee inasmuch as it is f (Emphas or the Assessing Officer to decide what inference can be reasonably drawn and it is not for someone else - far less the assessee - to tell the Assessing Authori ty what inference, whether on facts or on law, should be drawn. The relevant obs ervations, appearing in this regard, in Calcutta Discount Company Ltd. (supra), read as under: (cid:28)Does the duty, however, extend beyond the full and truthful disclosure of all p rimary facts? In our opinion, the answer to this question must be in the negativ e. 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 s of facts can be reasonably drawn and what legal inferences have ultimately to be drawn. It is not for somebody else - far less the assessee - to tell the asse ssing authority what inferences, whether of facts or law, should be drawn. Indee d, when it is remembered that people often differ as regards what inferences sho uld be drawn from given facts, it will be meaningless to demand that the assesse e must disclose what inferences - whether of facts or law - he would draw from t he primary facts. If from primary facts more inferences that one could be drawn, it would not be p ossible to say that the assessee should have drawn any particular inference and communicated it to the assessing authority. How could an assessee be charged wit h failure to communicate an inference, which he might or might not have drawn? (Emphasis is added) 21. It was, therefore, pointed out by the Supreme Court, in Calcutta Discoun t Company Ltd. (supra), that the Explanation to Section 147 does not have the ef fect of enlarging the Section by casting a duty on the assessee to disclose infe rences, which are really for the Assessing Officer to draw. Making this position of law clearer, the Supreme Court, in Calcutta Discount Company Ltd. (supra), l aid down as follows: (cid:28)It may be pointed out that the Explanation to the sub-section has nothing to do with (cid:28)inferences (cid:29) and deals only with the question whether primary material fac ts not disclosed could still be said to be constructively disclosed on the groun d that with due diligence the Income-tax Officer could have discovered them from the facts actually disclosed. The Explanation has not the effect of enlarging t he section, by casting a duty on the assessee to disclose (cid:28)inferences (cid:29) - to draw the proper inferences being the duty imposed on the Income-tax Officer. We have, therefore, come to the conclusion that while the duty of the assessee i s to disclose ’fully and truly’ all primary relevant facts, it does not extend b eyond this. (cid:29) (Emphasis is added) 22. In Parashuram Pottery Works Vs. ITO, reported in 106 ITR 1(SC), while in terpreting the words, ’omission or failure to disclose ’fully and truly’ all mat erial facts necessary for his assessment for that year’, the Supreme Court point ed out that these words postulate a duty on the assessee to disclose ’fully and truly’ all material facts necessary for the purpose of his assessment and what f acts are material and necessary for assessment would differ from case to case. T he Supreme Court also pointed out, in Parashuram Pottery Works (supra), that in every assessment proceeding, the assessing authority is required to know all the facts, which would help him in coming to the correct conclusion and help him to draw correct inference. The relevant observations read: (cid:28)The words (cid:28)omission or failure to disclose ’fully and truly’ all material facts necessary for his assessment for that year (cid:29) postulate a duty on the assessee to disclose ’fully and truly’ all material facts necessary for his assessment. Wha t facts are material and necessary for assessment will differ from case to case. In every assessment proceeding, the assessing authority will, for the purpose o f 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 prima ry 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 authorit y has to draw inference as regards certain other facts; and ultimately from the primary facts and the further facts inferred from them, the authority has to dra w the proper legal inferences, and ascertain on a correct interpretation of the taxing enactment, the proper tax leviable: See Calcutta Discount Co. v. Income-t ax Officer [1961] 41 ITR 191, 201 (SC). (cid:29) (Emphasis i s added) 23. Relying, once again, on Calcutta Discount Co. Ltd. (supra), the Supreme Court pointed out, in Parashuram Pottery Works (supra), that law casts, on the a ssessee, an obligation to disclose facts; secondly, the facts must be material; thirdly, disclosure must be full; and; fourthly, disclosure shall be true. What facts shall be treated as material and necessary for an assessment will differ f rom case to case. Where an assessee makes full and true disclosure of all materi al facts or, in other words, when the assessee lays bare, before the Assessing O fficer, the facts, which are necessary for assessment of his income, the lapse, on the part of an Assessing Officer to make a correct assessment, cannot, in suc h a case, be attributed to the assessee. In short, thus, an assessment, already made, cannot be reopened except f 24. or reasons as embodied in Section 147. This Court, in Assam Co. Ltd Vs. Union of India, reported in 275 ITR 609 (Gau), while dealing with Section 147 of the IT Act, has clarified this position of law in the following words: (cid:28)A plain reading of Section 147 of the Act demonstrate that the Assessing Office r acquires jurisdiction to act there-under only if he has reason to believe that any income chargeable to tax has escaped assessment for any assessment year. Th e proviso thereto places an embargo on the invocation of power under the above provision of the Act on the expiry of four years from the end of the relevant as sessment year in which any income chargeable to tax has escaped assessment for s uch assessment year except for reasons of failure on the part of the assessee to make a return under section 139 or in response to a notice issued under sub-sec tion (1) of section 142 or section 148 or to disclose ’fully and truly’ all mate rial facts necessary for the assessment for that assessment year. (cid:29) (Emphasis is added) Unless, therefore, there is an omission or failure, on the part of an as 25. sessee, to disclose, fully and truly, all material facts, which were necessary f or his assessment for a given assessment year, the power to re-open assessment, under Section 147, cannot be taken resort to. Merely on the ground that the asse ssee has received greater reliefs, than what he was entitled to, cannot give jur isdiction to the Assessing Officer to make a re-assessment. 26. What becomes abundantly clear from the above discussion is that neither Explanation 1 nor Explanation 2 to Section 147 enlarges the scope of the proviso to Section 147. If, therefore, there is no omission or failure, on the part of an assessee, to disclose ’fully and truly’ all material facts, which were necess ary for his assessment for a given assessment year, the Assessing Officer cannot reopen an assessment by taking resort to either Explanation 1 or Explanation 2 to Section 147 inasmuch as these Explanations do not enlarge the scope of the pr oviso to Section 147. This position of law is rendered beyond dispute if one car efully reads the following observations made in Calcutta Discount Co. Ltd. (supr a): (cid:28)It may be pointed out that the Explanation to the sub-section has nothing to do with (cid:28)inferences (cid:29) and deals only with the question whether primary material fac ts not disclosed could still be said to be constructively disclosed on the groun d that with due diligence the Income-tax Officer could have discovered them from the facts actually disclosed. The Explanation has not the effect of enlarging t he section, by casting a duty on the assessee to disclose (cid:28)inferences (cid:29) - to draw the proper inferences being the duty imposed on the Income-tax officer. We have, therefore, come to the conclusion that while the duty of the assessee i s to disclose ’fully and truly’ all primary relevant facts, it does not extend b eyond this. (cid:29) (Emphasis is added) 27. The reason for re-opening of the assessment, in the present case, is tha t the assessee had not included the amount received as transport subsidy in the annual income of the assessee. An Assessing Officer’s duty is not merely to look at the total annual income given by an assessee. What the assessee has to lay b efore the Assessing Officer is his annual income, that is, the income, which, ac cording to the assessee, is taxable and deductions, if any, which, according to the assessee, he is entitled to receive. A sum, received by an assessee, may not be treated by the assessee as an income. An Assessing Officer cannot blindly ac cept the annual income, which an assessee furnishes to him, or the taxable incom e, which an assessee presents before him, or the deductions, which an assessee c onsiders himself entitled to receive. It is the duty of an Assessing Officer to examine each of the material aspects of a return and, then, make his assessment. If the Assessing Officer is negligent or rash, he cannot blame the assessee for escapement of taxable income and, in this regard, neither Explanation 1 nor Exp lanation 2 would help such an assessment to be re-opened after the same is barre d by limitation, because of a period of four years having elapsed since the date of making of the assessment. In the case at hand, the transport subsidy, which had been received by t 28. he assessee, was duly disclosed by the assessee in the audited accounts and stat ements submitted by the assessee along with the assessee’s return of income for the assessment year 1997-1998. In fact, the Paper Book, filed before the Tribuna l, contains copies of the assessee’s audited balance sheet and statement submitt ed along with the return. The balance sheet, admittedly, contains the details of receipt of transport subsidy. 29. To be more precise, it may be pointed out that the transport subsidy res erve, shown by the assessee as on 31.03.96, was Rs. 35,00,330/-. By 31.03.97, th e transport subsidy reserve rose up to Rs.59,70,889/-. The difference of Rs.24,7 0,559/- has been added by the Assessing Officer in the total income of the asses see, while re-assessing the assessee’s income by re-assessment order, dated 10.0 3.2005. When the assessee had already disclosed, very clearly and thoroughly, th at his transport subsidy reserve was, as on 31.03.96, Rs. 35,00,330/- and that b y 31.03.97, this amount had risen to Rs.59,70,889/-, the appellant cannot say th at the assessee did not disclose all such material facts, which were necessary f or making a valid and effective assessment of income for the purpose of realizat ion of tax. In fact, in CIT Vs. Corporation Bank Ltd, reported in 254 ITR 791 (S C), it has been pointed out by the Supreme Court that disclosure, in the balance sheet, amounts to full and true disclosure of material facts necessary for asse ssment. The observations, made in this regard, which are relevant for our purpos e, read as under: (cid:28)Turning attention to the first question as regards the provisions under Section 147(a) be it noted and as the facts depict, there is no failure on the part of the assessee in furnishing the particulars pertaining to the above noted sum as not recoverable for the relevant accounting year and the statements filed along with the original return disclosed the full details of the aforesaid account. Th ere is, therefore, no failure on the part of the assessee to disclose ’fully and truly’ the material facts necessary for the assessment years for the respective years and as such section 147(a) has no manner of application and is not attrac ted in the facts of the matter under consideration. The High Court on considerat ion of the facts came to the conclusion that the Tribunal was justified in comin g to the said finding and we also record our concurrence therewith. (cid:29) (Emphasis is added) The reason, assigned by the Assessing Officer, at the time of making re- 30. assessment, in the present case, reads as under: (cid:28)On verification of the records it is seen that the assessee company has receive d subsidy Rs.2470559/- from the Govt. of Assam which was not included in the tot al income of the assessee during year 1996-1997 relevant to the assessment year 1997-1998. (cid:29) 31. The reason, so assigned by the Assessing Officer, shows that the informa tion, regarding transport subsidy, was available in the audited accounts and sta tements furnished by the assessee to the Assessing Officer along with the assess ee’s return. These details being available before the Assessing Officer, the Ass essing Officer cannot say that there was omission or failure on the part of the assessee to make return under Section 139 or in response to a notice issued unde r Sub-Section (1) of Section 142 or 148 or to disclose ’fully and truly’ all mat erial facts necessary for his assessment, for that assessment year. 32. In fact, there is not even a particle of accusation in the re-assessment order to show that the escapement of income, in the present case, was because o f the omission or failure, on the part of the assessee, to make return under Sec tion 139 or in response to a notice issued under Sub-Section (1) of Section 142 or 148 or to disclose ’fully and truly’ all material facts necessary for his ass essment, for that assessment year. A finding to the effect that there was omissi on or failure on the part of the assessee to make return under Section 139 or in response to a notice issued under Sub-Section (1) of Section 142 or 148 or to d isclose ’fully and truly’ all material facts necessary for his assessment, for t hat assessment year, is sine qua non for assumption of jurisdiction by the Asses sing Officer for re-assessment of income, which escaped disclosure. We are forti fied in taking this view from the decision in Dulichand Singhania Vs. ACIT, repo rted in 269 ITR 192 (P&H). 33. In the present case, re-assessment proceeding was initiated beyond the p eriod of limitation of four years as prescribed by Section 147. This could have been overridden had there been, on the part of the assessee, omission or failure to disclose ’fully and truly’ all material facts necessary for his assessment f or the given assessment year. 34. Since the present case did not suffer from non-disclosure or omission to disclose ’fully and truly’ the facts by the assessee, the Assessing Officer cou ld not have been held, and was rightly not held by the learned Tribunal, to have had the jurisdiction to re-open the assessment and make assessment as in the pr esent case. 35. While considering the case of Honda Siel Power Products Ltd. (supra), wh ich Mr. Hazarika has relied upon, it needs to be noted that Honda Siel Power Pro ducts Ltd. (supra) was a case, wherein there was an omission on the part of the petitioner to disclose the expenses incurred relatable to tax free/exempted inco me and since expenses were not disclosed, inference by way of re-assessment of i ncome was upheld. The facts of Honda Siel Power Products Ltd. (supra) are, as a lready discussed above, quite different from the facts of the present case inasm uch as all the material facts, which were necessary for making a correct assessm ent, had been furnished, in the case at hand, to the Assessing Officer and when the Assessing Officer had failed to make correct assessment, the Revenue cannot blame the assessee and take recourse to the proviso to Section 147 for the purpo se of re-opening the assessment. What crystallizes from the above discussion is that in the facts and cir 36. cumstances of the present case, re-opening of the assessment and making of the r e-assessment were bad in law and the learned Tribunal committed no error, either in fact or in law, in allowing the assessee’s appeal and in setting aside the o rder of re-assessment. We, thus, notice no infirmity, legal or factual, in the r e-assessment order. 37. In the result and for the reasons discussed above, we find no merit in t his appeal. The appeal, therefore, fails and the same shall accordingly stand di smissed. 38.