T.K. Basu, J.
1. The petitioner, Shiva Lal, was at all material times until the time hereinafter mentioned, the owner of several manganese ore mines and kyanite ore mines in Orissa and Bihar.
2. On April 1, 1960, a company known as S. Lal & Co. (Private) Ltd. was incorporated under the Indian Companies Act. The shareholders of the said company were the petitioner, Shiva Lal, and his wife, Smt. Chandrakala Lal, each having 50% of the total shares.
3. Thereafter, the said manganese ore mines and kyanite ore mines in Orissa and Bihar, of which the petitioner was the sole owner as aforesaid, were transferred to the said company for a total consideration of Rs. 29,91,133. After payment of certain amounts to the petitioner by cheque from the company in respect of the said consideration, on April 1, 1959, a sum of Rs, 24,86,633 was shown in the books of the company as a loan from the petitioner.
4. On February 13, 1960, a date which is relevant for the assessment year 1960-61, Rs. 5,00,000 was paid by the company to the petitioner by the issue of 5,000 fully paid up equity shares of Rs. 100 each.
5. For the assessment year 1960-61, the regular assessment of the petitioner was made under Section 23(3) of the Indian Income-tax Act, 1922, by A. K. Jana, Income-tax Officer, ' G ' Ward, Companies District (I), Calcutta, by his order dated March 31, 1962. The copy of the order of assessment for the assessment year 1960-61, in which the name of Shri A. K. Jana appears has been tendered and exhibited in the records of this case by consent of parties.
6. On January 19, 1967, one D. K. Gupta, Income-tax Officer, 'L' Ward, Companies District (I), Calcutta, issued a notice under Section 148 of the Income-tax Act, 1961 (hereinafter referred to as ' the Act') proposing to reassess the income of the petitioner for the assessment year. 1960-61 on the ground that the officer had reason to believe that the income chargeable to tax for the said assessment year had escaped assessment within the meaning of Section 147 of the Act.
7. By a letter dated April 1, 1967, addressed to the Income-tax Officer, 'L' Ward, Companies District (I), Calcutta, the petitioner through his representative, S. R. Batliboi & Co., chartered accountants, recorded the fact that from a discussion that the said Income-tax Officer, had with Mr. A. C. Chakrabortti and M. K. M. Mehta of the said firm, chartered accountants, it appeared that it was proposed to reopen the assessment for the assessment year 1960-61 for the alleged purpose of including the capital gains arising out of the exchange of the loan asset for shares in Messrs. S. Lal & Co. Private Ltd. It is further stated in the said letter that, at the time of the original assessment, these materials with regard to the alleged exchange of the capital asset, namely, the issue of 5,000 equity shares of Rs. 100 each from the company in favour of the petitioner were placed before the Income-tax Officer, who made the original assessment and all particulars relating to the petitioner's transaction with Messrs. S. Lal & Co. Private Ltd. were also furnished before the said Income-tax Officer and there were verbal discussions also with the client's representative at the time of the original assessment. Hence, it was contended, that there was no omission or failure on the part of the petitioner to disclose fully and truly all materials necessary for the assessment for that year with regard to the said alleged capital gains. It is to be noted that no reply was received by the petitioner to the said letter of April 1, 1967, addressed by S. R. Batliboi & Co.
8. It is the notice dated January 19, 1967, issued under Section 148 of the Act, for the assessment year 1960-61, which was challenged before me in this application.
9. Dr. Debi Pal, appearing on behalf of the petitioner, contended that the conditions precedent for the assumption of jurisdiction by the Income-tax Officer, before issuing the notice under Section 148 of the Act, not having been fulfilled in the present case, the notice must be struck down as void and without jurisdiction. He drew my attention in this connection to the statements in paragraphs 7, 8, 13 and 14 of the petition where it has been specifically alleged that all material facts with regard to, the issue and allotment of 5,000 fully paid up equity shares of Rs. 100 each of the said company in favour of the petitioner were fully disclosed before Shri A. K. Jani, who was the Income-tax Officer making the original assessment for the assessment year 1960-61. My attention was also drawn to the affidavit of Harnam Singh Serna on behalf of the respondents affirmed on July 15, 1967, wherein it appears from the statements in paragraphs 3 and 4 of the said affidavit that the omission or failure to disclose the particulars with regard to capital gains arising out of the exchange of capital assets, namely, the alleged exchange of the loan of Rs. 5,00,000 for shares of the said company of identical value has been made the only ground for re-opening the assessment in the present case.
10. It is contended by Dr. Debi Pal that the petitioner having thrown a specific challenge that these facts were before the original assessing officer, namely, Shri A. K. Jana, and that these facts were fully considered by him, the only person who could really contradict that allegation is Shri Jana himself. He contended that in the absence of any statement on oath before me by Shri Jana that these facts were not placed 'before him, I should draw the inference that the petitioner's challenge has gone un-contradicted. He further contended that even the Income-tax Officer who has issued the impugned notice under Section 148 of the Act, and who has to have ' the reasonable belief' as required by the Act, has not come forward to state before me as to what were the reasons which impelled the said officer to issue the impugned notice. The statements made in paragraphs 3 and 4 of the affidavit of Harnam Singh Serna appear to have been based on information received from the records of the case. Mr. Suhas Sen, appearing on behalf of the respondents, was entirely unable to refer me to any part of the records of the present case from which it can possibly be concluded that there was any omission or failure to disclose this fact regarding the alleged exchange of capital asset before the original assessing Income-tax Officer.
11. Dr. Pal also drew my attention to a decision of the Bombay High Court in the case of Rantaniwas Kanailal v. S. P. Shende, Income-tax Officer, D-I Ward, Bombay,  56 I.T.R. 659 (Bom.). In that case, the petitioner alleged that at the time of the original assessment proceedings he was interrogated by the Income-tax Officer about his antecedents and his business activities in West Punjab, and he was also called upon to file a written statement in answer to certain queries. An office copy of the written statement alleged to have been filed by him was produced and exhibited in the proceedings. In this state of allegations in the petition, an affidavit in answer was filed and also a second affidavit was filed by the revenue. None of the deponents of the said two affidavits, however, had any personal knowledge of the assessment proceedings for the relevant years. The deponents also did not claim that their informations were derived from the Income-tax Officers of that time, namely, Kazi, Gopinathan and Pradhan, who were the officers who dealt with the cases in course of the regular assessment proceedings. This kind of denial by persons who had no knowledge of the proceedings was strongly commented upon by their Lordships of the Bombay High Court.
12. To the same effect is a decision of this court in the case of Narasingh-das Bagree v. Income-tax Officer, ' B' Ward, Dist. 1(1), Calcutta,  61 I.T.R. 172, 177 (Cal.). Sinha J. (as he then was) observed as follows :
' The Income-tax Officer who issued the notice under Section 34(1)(a) was Mr. M. S. Mann. He, however, has not filed any affidavit. Another Income-tax Officer files an affidavit. Naturally, his knowledge is confined to the record. He has made vague statements in his affidavit and the originalrecords have not been produced. I think that, on the facts, the petitioner's case is almost uncontradicted. Statements made, which are based on information received from the records which are not produced are worse than useless.'
13. In the present case also, I cannot but help coming to the same conclusion, namely, that in spite of specific allegations made by the petitioner that the relevant and material facts were before the original assessing officer, there has been no denial which merits a serious consideration by this court. The only two Income-tax Officers who could have thrown any light on this question of non-disclosure by the petitioner are the original assessing officer, Shri A. K. Jana, and the officer who issued the impugned notice, namely, Shri D. K. Gupta. None of them has come forward to pledge their oath before me.
14. On the state of the pleadings before me, I cannot but come to the conclusion on a consideration of all the allegations that there was sufficient disclosure of the material facts by the petitioner in the course of the regular assessment proceedings. In other words, there was no omission or failure to disclose fully and truly the material facts necessary for the purpose of the regular assessment of the petitioner with regard to the alleged exchange of capital asset which is made the ground for reopening the proceedings by the issue of the impugned notice. Hence, I hold that the conditions precedent for the exercise of power in issuing the impugned notice not having been fulfilled in the present case, the notice must be held to be without jurisdiction and void.
15. In the result, this application succeeds and the rule is made absolute. There will be a writ in the nature of mandamus directing the respondents to forthwith recall and cancel the notice dated January 19, 1967, issued under Section 148 of the Indian Income-tax Act and a writ in the nature of prohibition restraining the respondents from giving effect to or taking any steps on the basis of the said notice. The respondents should, however, be at liberty to proceed according to law. There will be no order as to costs.