Bishambhar Dayal, C.J.
1. This order passed in Miscellaneous Civil Case No. 205 of 1970 will also govern the disposal of Misc. Civil Cases Nos. 206, 207, 208 and 209 of 1970, These are five references at the instance of the Commissioner of Wealth-tax, Madhya Pradesh. The facts are not in dispute. The assessee, Shri Manilal C. Desai, is a partner in a firm. While he was being assessed for income-tax the amounts standing in the name of his wife were included as his own money and the interest realised on those amounts was included in his income. The assessee, however, filed his wealth-tax returns for all the years in question from 1957-58 to 1961-62 and in all the years he claimed exemption for the amount standing in the name of his wife. The Wealth-tax Officer accepted this contention and did not include this amount in the wealth of the assessee. Later on, however, he gave a notice under Section 17 of the Wealth-tax Act for reopening of the assessment by including the amount as property of the assessee. It was objected to by the assessee that the issue of the notice was wholly illegal as it was not covered by any of the provisions of Section 17. The contention was that this amounted to mere change of opinion and the Wealth-tax Officer could not reassess on that basis. The contention was rejected by the Wealth-tax Officer as well as on appeal. But on further appeal before the Tribunal the contention was accepted and the reassessment was set aside. But on an application being made by the Commissioner of Wealth-tax the following three questions have been referred to this court:
' (i) Whether the Tribunal was justified in law to come to the conclusion that no action under Section 17(1)(a) of the Wealth-tax Act could be taken against the assessee in this case
(ii) Whether the Tribunal was in law justified in holding that the assessment under Section 17(1)(b) of the Wealth-tax Act would also be not competent on the facts of this case
(iii) Whether the Tribunal was in law right in coming to the conclusion that the gifts can be said to have been made by the assessee himself ?'
2. On the first question the point for consideration is whether in these cases the assessee failed to disclose fully or truly all material facts. It is not denied that the assessee had disclosed in his return this amount whichwas in the name of his wife. He had claimed an exemption on the ground that this money had been transferred to his wife by means of a gift. Therefore, it cannot be said that the assessee had failed to disclose any fact. He disclosed all the facts and he claimed an exemption. It was for the assessing officer to believe or not to believe his contention that the money had been gifted in favour of his wife. If at the time of original assessment his contention was accepted, it cannot be said that the assessee had failed to disclose fully or truly any material fact. The Tribunal was, therefore, right in coming to the conclusion that the notice could not be treated as a valid notice under Section 17(lXa) of the Wealth-tax Act.
3. Considering the notice as a notice under Section 17(1)(b) it was necessary to show that it was in consequence of any information in his possession that the taxing officer had reason to believe, etc. No positive information is shown to have come to the knowledge of the assessing officer. What was contended was that the assessing officer had wrongly omitted to include certain property in the property of the assessee and since this fact came to his knowledge afterwards, it can be said to be a case of information received within the meaning of section 17(1)(b) of the Act. A divergence of opinion on this point seems to exist between the Bombay High Court and the Madras High Court, but we need not go into that controversy as we think that in the circumstances of the present case it is not even a case of omission to include any property within the 'property of the assessee. If a particular property had been omitted from being taken into consideration, it can be said to be a case of omission. But in case an express exemption is claimed in respect of property and that exemption is granted by an order, it cannot be said to be an omission to include a property within the property of the assessee. It would be a case simply of change of opinion by the assessing officer. Once he was of opinion that the property should be exempted and later on he felt that he should not have exempted it. Such a case cannot be covered even by Section 17(1)(b) of the Wealth-tax Act.
4. We, therefore, think that the Tribunal was right in allowing the appeal and setting aside the reassessment.
5. With regard to the third question we need only say that that question does not arise in view of the opinion we have expressed regarding the first two questions. There being no power to reopen the assessment once made, it is not necessary to answer the third question. Even the Tribunal had observed that it was not necessary to decide the third point but it was being decided because it was argued. We, consequently, decline to answer the third question.
6. Our answer to the first two questions is as follows:
(i) The Tribunal was justified in law to come to the conclusion thatno action under Section 17(1)(a) of the Wealth-tax Act could be takenagainst the assessee in this case.
(ii) The Tribunal was in law justified in holding that the assessment under Section 17(1)(b) of the Wealth-tax Act would also be not competent, on the facts of this case.