JUDGMENT
Raghuvir, J.
1. The three writ petitions arise under the Income-tax Act, 1961. Tallam Rama Rao is the assessee in all the three cases. He averred earlier to the impugned proceedings, that the Income-tax Officer, Rajahmundry, was ordered not to reopen assessment orders by the Income-tax Appellate Tribunal on March 22, 1983, in I.T.A. Nos. 718 to 721/Hyd/1982. The assessment order for 1975-76 was concluded on March 5, 1976; 1976-77 order was concluded on September 30, 1977, and 1977-78 on October 28, 1978. Notwithstanding the order of the Appellate Tribunal, it is complained that the Income-tax Officer, in the impugned proceedings, is seeking to reopen the orders.
2. We have informed the assessee that it is inexpedient to decide the common question raised under article 226 of the Constitution. The assessee argued that the issues raised involve the jurisdiction of the Income-tax Office. Further, it was urged that, in view of the order of the Appellate Tribunal of March 22, 1983, the Income-tax Officer should be interdicted from reopening the three assessment orders. We are of the view that the question raised is not one of jurisdiction. The question may touch upon estoppel. As to estoppel, we hold that no case is made out by the assessee for interference by this court under article 226 of the Constitution. We now state the facts and reasons for arriving at that conclusion.
3. Rama Devi is the daughter of the assessee. She was marred while a minor, on April 7, 1972, in Madde family. She is now called M. Rama Devi. She was inducted in two partnership firms where the assessee is a partner. One of the two is Durga Stainless Steel Stores. The partnership firm was formed on April 15, 1972. Rama Devi was inducted on April 1, 1973, as a minor partner. Sri Raja Metal Industries is another firm where also she was inducted as a partner. (The particulars of formation and induction of the minor are not available on record). Soon after the three assessment orders referred to earlier were concluded, in an “audit note” it was alleged by the Revenue that the assessee for the relevant years did not disclose his minor daughter’s income in the respective three returns. The Income-tax Officer construed the audit report as “information” within the meaning of clause (b) of section 147 of the Act and reopened the assessments for the three years. The order of the Income-tax Officer was reversed on appeal. The Income-tax Appellate Tribunal, on March 22, 1983, dismissed the appeal. The application under section 256(1) made by the Revenue was dismissed. Thus, by the order of the Appellate Tribunal, the “former proceedings” were concluded.
4. The Tribunal, in the former proceeding, held :
“The Allahabad High Court held that the information that has come to the possession of the Income-tax Officer from the assessment of the firm cannot be regarded as information from a formal source. It would only amount to a fresh look on the facts already on record, and since it was not open to the Income-tax Officer to have a fresh look and change his opinion, it was held that the reassessment proceedings were invalid.” In the impugned proceedings, on December 8, 1986, under clause (a) of section 147, the Income-tax Officer is seeking to reopen the proceedings on the ground that the assessee “failed” to disclose the income of the minor daughter which has was obliged to disclose under Chapter V, Part I, as per the form and as required in (B) of column 12. In view of the order of March 22, 1983 of the Appellate Tribunal, the assessee assert that the Income-tax Officer has no jurisdiction, and, therefore, a writ of prohibition is sought by the assessee under article 226 of the Constitution. The assessee urged that it is far more efficacious on the above facts to quash the proceedings by this court than for the assessee to work out relief in the hierarchy of appeals and by reference to this court. The Revenue averred that the assessee failed to disclose particulars of income relating to the minor in regard to the three assessment years. The Income-tax Officer as required under clause (a) of section 147 recorded reasons for reopening the three assessments and served the impugned notices. In these circumstances, the Income-tax Officer is within his power to reopen the proceedings as the issue raised now was not determined in the earlier proceedings.
We may note that in view of the earlier proceedings under clause (b) of section 147, a question may arise-we take care to emphasise “may arise” whether it is proper for the Income-tax Officer to initiate proceedings under clause (a). This question in such a form is a question of propriety rather than of jurisdiction or of estoppel as explained immediately.
We consider that the case illustrates a conceptual error in the understanding of the order in the former proceedings and, therefore, we determine the question raised under article 226 of the Constitution of India.
The issue raised is whether the assessee “failed” to disclose the income of his minor daughter in the earlier three returns, and, therefore, under clause (a) of section 147 of the Act, the impugned proceedings are initiated, and whether the Income-tax Officer has jurisdiction to reopen the assessment order concluded earlier.
We see, in the former proceedings, that the issue raised by the Revenue in the instant proceedings was not decided. What was decided earlier was that no case was made out to invoke the power under clause(b) of section 147. Had the issue been decided – (a) estoppel in law would have arisen, (b) but not question of jurisdiction. This aspect we desire to explain with reference to the decided cases. In the two questions, (a) and (b), the determination of facts is at times called a “fundamental fact” or a “primary fact”. Whether a case under clause (b) of section 147 arose, or the case arose under clause (a) of section 147, is neither a fundamental fact nor a primary fact.
We now turn to the meaning of the two expressions. What is a primary fact is explained in Bracegirdle v. Oxley [1947] 1 KB 349 at p. 358 : “… Primary facts are facts which are observed by the witnesses and proved by testimony; conclusion from those facts are inference deduced by a process of reasoning from them. The determination of primary facts is always a question of fact. It is essentially a matter for the Tribunal which sees the witnesses to assess their credibility and to decide to primary facts which depend on them.” What is a fundamental factor a primary fact was explained by the Privy Council in Hoystead v. Commr. of Taxation [1926] AC 155, a case from Australia. We may refer to the facts in the Australian case.
Charles Campbell, a merchant in Melbourne, died. Seven children survived him. In his last testament, he created a trust for twenty-one years. On expiration of the period, the trustees were to divide the corpus among the children. The children of the deceased took the parents’ share. The issue came to be decided in the case under the Land Tax Assessment Act, 1910-1916. In the assessment order for 1918-1919 under the Act, the trustees claimed seven deductions of 5,000 (pounds). Six deductions of 5,000 (pounds) were allowed. The Revenue raised the self-same question in a different form in the assessment for 1920-1921. The Privy Council observed (at p. 163) : “It amounts to this-that in the former case it was not a matter of decision that the appellants were joint owners, but was a matter of admission”. It was explained that Campbell’s six children were not joint owners was admitted by the Revenue and six deductions were ordered. In the subsequent proceedings, in assessment order for 1920-1921 between the same parties, the question again was raised by the Revenue. The Privy Council held (at p. 165) : “In the opinion of their Lordship, it is settled, first, that the admission of a fact fundamental to the decision arrived at cannot be withdrawn and a fresh litigation started, with a view to obtaining another judgment upon a different assumption of fact; secondly, the same principle applies not only to an erroneous admission of a fundamental fact, but to an erroneous assumption as to the legal quality of that fact. Parties are not permitted to begin fresh litigations 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 documents or the weight of certain circumstances. If this were permitted, litigation would have no end, except when legal ingenuity is exhausted. It is a principle of law that this cannot be permitted, and there is abundant authority reiterating that principle. Thirdly, the same principle-namely, that of setting to rest rights of litigants, applies to the case where a point, fundamental to the decision, taken or assumed by the plaintiff and traversable by the defendant, has not been traversed. In that case also, a defendant is bound by the judgment, although it may be true enough that subsequent light or ingenuity might suggest some traverse which had not been taken. The same principle of setting parties’ right to rest applies and estoppel occurs.” Similar is the ratio in a case decided by one of us (Raghuvir J.) in Sirpur Paper Mills Ltd. v. ITO . “The admission of a fundamental fact or primary fact cannot be withdrawn and on fresh litigation cannot be started with a view to obtain another assessment upon different assumption of facts.”
5. The assessee relied on the decision in ITO v. Madnani Engineering Works Ltd. to support his contention. The issue in that case was whether the belief of the Income-tax Officer was well founded. The court held (at p. 6) : “We are, therefore, not at all satisfied on the affidavit that the Income-tax Officer had reasons to believe that a part of the income of the respondent had escaped assessment by reason of its failure to make a true and full disclosure of the material facts.” In ITO v. Lakhmani Mewal Das , the second case cited, it was held (headnote) : “It an Income-tax Officer draws an inference which appears subsequently to be erroneous, mere change of opinion with regard to that inference would not justify initiation of action for reopening assessment.” In CIT v. Balvantrai S. Jain a case from Bombay, relied on by assessee, the facts showed that two letters written in 1950 and 1952, by which time the assessment for the year 1944-45 was completed, were considered, and it was held (at p. 70) : “It cannot be said, therefore, that any recitals in these letters amounted to failure to disclose fully and truly the material facts.” In Mrigendra Shum Sher Jung Bahadur Rana v. ITO , the Delhi High Court held that the Tribunal was not justified in law in reopening the assessment on facts. In CIT v. P.K. Kochammu Amma, Peroke , in view of a note appended to the return, it was held, the amounts representing the shares of the husband and minor daughter of the assessee in the profits of the two partnership firms had to be shown. The assessee failed to disclose these amounts in the return. That failure was held to be a breach of obligation imposed by section 139, sub-section (1). The above cases have no application to the facts of the instant case.
6. The writ petitions, for all the aforesaid reasons, fail and are dismissed with costs. Advocate’s fee Rs. 150 in each.