A. Raghuvir, C.J:— These two writ petitions are filed by a partnership firm called M/s Abdul Rab Abdul Salam. The firm was constituted on July 1, 1965 with four partners. Two among the partners are indicated in the firm's name. The other two are Abdul Barik and Abdul Jabbar. The firm was reconstituted on April 1, 1949 and four more partners were inducted on that day. The main office of the firm is at Tinsukia in Assam and branch at Sonari in Sibsagar District and another branch at Calcutta in the State of West Bengal. The firm deals in stationary ready-made goods and is the agent of the Bata Shoe Company at all the three places of business. The issue raised in the two Civil Rules pertain to Income-tax orders of the firm for assessment years 1968-69 and 1969-70. The circumstances which prompted the firm to file the two Civil Rules are set out below and as to what has preceded the impugned notices and as to why the revenue has served the two notices on the firm.

2. On June 6, 1968 the assessee was called upon to submit return for the assessment year 1968-69 under sub-section (2) of section 139 of the Income Tax Act. In response the assessee (the firm) filed the return showing the income of Rs. 46,465/-. This amount was later revised to Rs. 73,300/-. For the assessment year 1969-70 the assessee filed a return after a like notice by the revenue showing the income of Rs. 1,08,030/-. In the inquiry held the assessee offered books of account and filed the books of profit and loss balance-sheets for each accounting year of main office and two branches. On September 27, 1971 the Income Tax Officer finalised orders for the assessment year 1968-69 and 1969-70 and on that day also for assessment year 1967-68. The impugned notices were served on the assessee by the Income Tax Officer to reopen the assessment of 1968-69 and 1969-70. Therefore the assessee approached this Court to quash the two notices. What prompted the revenue to re-open the assessments is concerned with the events that have had transpired in the Enforcement branch of the Sales tax Department. The Head Office of the assessee at Tinsukia was searched and in that account books were seized. It was found enormous turnover of the business of the assessee was discovered by the Sales tax Department to have escaped assessments. Therefore the assessment orders were revised including the assessment orders relevant to Income tax year 1968-69 and 1969-70.

3. When information reached the Income-tax Officer of seizure of books and revision of assessment orders the Superintendent of Taxes was requested to furnish necessary particulars of the revisions made by that Department. In response the Sales Tax Authorities furnished, particulars showing the quarter ending September 30, 1967 the turnover shown at Rs. 3,98,136/- before the books were seized, was, later revised to Rs. 9,20,463/-. The quarter ending March 31, 1968 the original turnover of Rs. 3,84,381/- was revised to Rs. 8,46,420/-. Thus, for financial year 1968 figures Rs. 9,20,463/- plus Rs. 8,46,429/- was the total turnover of Rs. 17,66,892/- was ascertained. Likewise, for the quarter ending September 30, 1968 the original turnover was Rs. 4,23,187/- which was revised to Rs. 8,38,997/-. The original turnover for the succeeding quarter ending with March, 1969 Rs. 7,51,814/- was not revised. Thus the total of the turnover for the financial year 1969 was ascertained Rs. 7,51,814/- plus Rs. 8,38,397/- = Rs. 15,90,211/-.

4. After the particulars were received, the ITO under Section 147 of the Income Tax Act recorded the reasons for reopening the two assessment orders and served the two impugned notices. The assessee once on October 24, 1973 and later on November 13, 1973 by two letters protested. The validity of the notice was questioned and sought for clarifications. When nothing was heard from the revenue the assessee filed the two Civil Rules to quash the impugned two notices and flutter to interdict the ITO not to reopen the assessment orders.

5. We may here at the outset mention one aspect relevant: to the bar of limitation raised by the assessee. It is seen the two assessment orders were finalised on September 27, 1971 and from the above date one of the questions raided by the assessee relating to assessment order of 1968-69 is that the notice was served on October 20, 1973 after four yearstherefore the notice is barred under clause (b) of Section 148 of the Act, As far as the assessment order relating to 1969-70 notice is not assailed as barred. We hold no question of bar of limitation arises in either of the cases as the impugned notices are served on facts under clause (a) of section 147 not under (b) of Section 147

6. We may now consider the principal issue raised in the two cases. The issue raised is not res Integra. When assessment can be re-opened is set out in the Income-tax Act. What principles govern the issues in reopening of assessments and when assessments can be reopened was explained by Courts Nevertheless whenever such issues are raised the courts will have to apply the principles laid down to the facts of each case. In that sense in the two cases the issue has to be scrutinised from the perspective of Account Book which are not filed before the Income Tax Officer and the turnover of the assessments discovered to have been escaped.

7. The principle in such cases is culled out from the words in clause (a) of Section 147 of the Income-tax Act. The words are whether assessee disclosed “fully and truly all material facts necessary for assessment”. Once the assessee does that what inferences are to be drawn is in the hands of the Income-tax Officer. It is open for the Income-tax Officer not to act on the representation of the assessee, call for additional information or further investigate facts and pass the assessment order. In doing so he may totally reject the case of the assessee or partially accept the representation of the assessee or fully agree with the case of the assessee. Once the assessment order is finalised or issues in the inquiry are settled the same issues cannot be reopened later stating the ITO has discovered the truth later. The conclusion arrived earlier was discovered to be wrong or the assessee got away with the false representation. The ITO can reopen only if he records true facts were not disclosed; (like true account books were not filed as in this case).

8. Three decisions of the Supreme Court are cited and in that three cases the above principle is explained. The first one is 41 ITR 191 (Calcutta Discount Co. Ltd. v. Income-tax Officer) and in that case it was explained “there is no duty on the assessee to disclose further facts, which on due diligence, the Income-tax Officer might have discovered……. which might have been discovered by the assessing authority if he had pursued investigation on the basis of what has been disclosed”. There was no further duty on the assessee it was emphasised what inferences are to be drawn or for what matter what proper inferences to be drawn. Again in 71 ITR 609 (Commissioner of Income-tax, Calcutta v. Burlop Dealers Ltd.) emphasis was laid on words “omission or failure” how it is to be considered is discussed. The discussion shows the duty postulated by the assessee is only to the extent to disclose fully and truly material facts necessary for assessment. What facts are material and what are not necessary for assessment will differ from case to case. “Where on the evidence and the materials produced the Income-tax Officer could have reached a conclusion other than the one which he has reached” was juxtaposed to snow the assesses was under no obligation to inform “the Income-tax Officer which inference may be raised against him. The above cited two cases were relied in the third case 118 ITR 1 (Income-tax Officer, 1-ward, Hundi Circle, (Calcutta) v. Madnani Engineering Works Ltd.), In that case what can be done by the ITO was further explained. What is not the duty of the assesses in the discussion of the case is explained with reference to the contention raised in that case “the assessee contended that it has produced all the relevant materials and documents necessary for competing the assessment and it was under no obligation to inform the ITO about the true nature of the transaction and there was accordingly no failure on its part to disclose fully and truly and material facts necessary for its assessment……”. The assesses discharged his obligation so it was held when he tenders books of account and evidence from which material facts could be discovered. It was for the ITO to decide whether the documents produced by the assesse were genuine or false. All the aspects considered in the two earlier cases were explained and followed.

9. Thus once assessee disclosed material facts necessary and assessment is finalised later for a different conclusion on the same fact the assessments cannot be reopened. If this was not the law on Privy Council case from Australia held “litigation will never end”. The assessee can never rest in peace. The revenue can always reopen and such a power to reopen the orders can be wielded to harass the assessee. Litigation can never be concluded finally. All assessment can be reopened with a view to “obtain another judgment upon a different assessment of fact”. The Privy Council further held “Parties are not permitted to begin fresh litigation because of new views they may entertain of the law of the case or new versions which they present as to what should be a proper apprehension by the Court of the legal result either of the construction of the document or the weight of certain circumstances. If these were permitted litigation would have no end except when legal ingenuity is exhausted”. These aspects were applied by one of us (Raghuvir, J.) in 114 ITR 404 in Sripur Paper Mills Ltd. v. ITO. The above passage extacted is found in Privy Council case Haystead v. Commissioner of Taxation, 1926 AC 155.

10. In the instant case on the basis of those three cases the assessee contended accounts books were placed before the ITO. The assessment orders ware concluded therefore it is no more open for the revenue to reopen orders. The reasons recorded for reopening the case are facts disclosed in search and seizure of the accounts books by the Sales Tax Authorities. The additional accounts books which were seized in the search held in May 1969 were not placed by the assessee before the revenue. It is only from accounts books seized from the assessee true facts came to light is the case of the revenue. The books seized at Tinsukia were not placed before the Revenue is obvious from the facts when the order was finalised on September 27, 1971. Therefore the assessee did not place “true material” before the ITO. Therefore it is asserted rightly by the revenue that they are entitled to reopen the assessment.

11. We have set out at first what is the principle which govern the reopening of assessments. We have applied the principles to the facts of the instant cases we hold the impugned notices did not suffer from any vice whatever.

12. It was argued on behalf of the assessee by placing reliance on 57 ITR 637 (Madhya Pradesh Industries Ltd. v. Income-tax Officar, Special Investigation Circle ‘B’ Nagpur) the assessee can question the jurisdiction of the ITO in a proceeding under Art. 226 of the Constitution. That contention is well founded. The Supreme Court in that case held: “the jurisdiction of the Income-tax officer obviously arises when he has reason to believe that by reason of cmission or failure on the part of an assessee to disclose fully and truly all material facts necessary for his assessment we are not seeking to lay down any rigid rule about the nature or question of enquiry which the High Court in a petition which seeks to challenge the issue of a notice under section 34(1)(a) of the Indian Income-tax Act may make. If there be other grounds which appear to the High Court to be adequate such as delay or acquiescence, existence of an adequate alternative remedy which is equally efficacious, or failure to disclose all material facts which have a bearing on the question of misrepresentation of facts, jurisdiction of the High Court to dismiss a petition in limine cannot be denied”. Again in 67 ITR 11 (Commissioner of Income-tax, Gujarat v. A. Raman and Co.) the powers of the High Court were reiterated. “……The taxpayer may challenge the validity of a notice under section 147 of the Income-tax Act, 1961, on the ground that either branch of the condition precedent does not exist, but an investigation whether inferences raised by the Income-Tax officer from the information are correct or proper cannot be made.” Finally the assessee relied on 103 ITR 437 (Income-tax Officer, 1 ward, Dist. VI, Calcutta v. Lakhmani Mewal Das) in that case the subject was fine tuned as to what the High Courts can and cannot do. “The powers of the Income-tax to reopen assessment, though wide, are not plenary. The words of the statute are ‘reason to believe’ and not reason to suspect”. The reopening of the assessment after lapse of many years is a serious matter. The Act, no doubt, contemplates the reopening of the assessment if grounds exist for believing that income of the assessee has escaped assessment. The underlying reason for that is that instance of concealed income or other income escaping assessment in a large number of cases came to the notice of the Income tax authorities after the assessment has been completed. The provisions of the Act in this respsect depart from the normal rule that there should be, subject to right of appeal and revision, finality about orders made in judicial and quasi-judicial proceedings. It is, therefore, essential that before such action is taken the requirements of the law should be satisfied the live link or close nexus which should be there between the material before the Income-tax Officer should exist.”

13. In 63 ITR 219 (S. Narayanappa v. Commissioner of Income-tax, Bangalore) another case which is cited in emphasised the subject with reference to procedure to be followed. “But before issuing the notice the proviso requires that the officer should record his reasons for initiating action under section 34 (the earlier provision under 1922 Act) and obtain the sanction of the Commissioner who must be satisfied that the action under section 34 was justified”.

14. We experience no difficulty in holding the assessee can approach the High Court for relief but on consideration of the facts we hold no case is made out in the instant cases for the interference by the Court. No other point has been argued.

15. For the aforesaid reasons the Civil Rules are dismissed with costs. The costs fixed are at Rs. 250/- in each case.