Sabyasachi Mukharji, J.
1. The petitioner in this application under Article 226 of the Constitution challenges the impugned notice issued under Section 148 of the I.T. Act, 1961, for the assessment year 1956-57. The said notice was issued on the 26th of March, 1973, under Clause (a) of Section 147 of the I.T. Act, 1961. The reasons for reopening the assessment of the assessee have been annexed in the affidavit-in-opposition. The said reasons read as follows :
' The assessee maintains a current account with the Bank of India in the name of M/s, Calcutta Plywood Mfg. Co., a proprietary concern of the assessee, the details of which were not produced at the time of original assessment. From the details of transactions in the said current account obtained from the bank it appears that during the current year 1955 relevant to the assessment year 1956-57, the total deposits were Rs. 5,06,700 against total turnover of the business shown at Rs. 1,89,725. I have, therefore, reason to believe that by reason of the omission or failure on the part of the assessee to disclose fully and truly all material facts necessary for her assessment for the assessment year 1956-57, incomeamounting to Rs. 68,009 has escaped assessment for the said assessment year 1956-57.'
2. The question is whether there was any omission or failure on the part of the assessee to disclose fully and truly all material and relevant facts necessary for the assessment. In para. 5 of the petition, it is stated that during the assessment proceedings, the husband of the petitioner, Dr. B. Halder appeared before the ITO and produced the books of account and other relevant materials. It is further stated in the said para. 5 of the petition that during the assessment proceedings, the petitioner's husband produced the bank accounts of National and Grindlays Bank Ltd. and Bank of India Ltd. and the different entries in the accounts and also the credits appearing in the accounts of the said two banks were discussed with the assessing ITO at the time of the assessment proceedings. This paragraph has been verified as true to the knowledge of the petitioner's husband, Dr. B. Halder, who has verified the statements in the said petition.
3. The ITO, Mr. H. P, Seal, who made the original 'assessment for the assessment year 1956-57, has not filed any affidavit controverting the above statements. The fact that the impugned assessment was made under Section 23(3) of the I.T. Act, 1922, and a letter was written prior to the reopening of the proceeding in question corroborate the statement that the bank pass books which were called for were, in fact, produced by the assessee. Furthermore, there is no affidavit controverting the statement made on behalf of the assessee by the assessee's husband. In that view of the matter, it must be accepted that the bank pass books were in fact produced. The question, therefore, is that the bank pass books having been produced by the husband of the assessee, in respect of the details of which was there any omission or failure on the part of the assessee which could be considered as failure to disclose fully or truly all material facts ?
4. The principles upon which this, question has to be determined have been discussed by the Supreme Court in several decisions. I might refer to the decision in the case of Gemini Leather Stores v. ITO : 100ITR1(SC) . Having regard to that decision it cannot be said that there was failure or omission on the part of the assessee to disclose fully and truly all material facts for the purpose of assessment and, as such, the condition precedent for the issue of notice has not been fulfilled. The impugned notice is, therefore, without jurisdiction and must be quashed.
5. The impugned notice dated 26th of March, 1973, is hereby quashed and the respondents are restrained from giving effect to the said notice. If, however, in the meantime, any assessment has already been made in pursuance of the said impugned notice dated 26th March, 1073, the same is also quashed and set aside.
6. The rule is made absolute accordingly but there will be no order as to costs.