JUDGMENT 1. (Oral) - This is reference application under Section 256(2) of the Income Tax I Act, 1961 at the instance of the revenue. 2. Manohar Lal Gupta (for short, the assessee'), on 9th October, 1979 was apprehended by the Customs Authorities, Jaipur at Ghat Gate, Jaipur. The search was conducted on his person and the file bag that he was carrying in which Emeralds and Ruby (finished goods) of about Rs. 3,48,116/-was recovered. For want of any proof by him for lawful acquisition/possession of the said goods, the customs authorities seized the said goods some-where in the third week of October, 1979. The seized goods were delivered to the authorised officer (Income Tax Officer) under Section 132A(2) of the Income Tax Act, 1961 by the Customs authorities on 29th December, 1980. Pertinently, the Income Tax Officer, H-Ward, Jaipur, on 27th November, 1981, passed a provisional order of assessment under Section 132(5) assessing undisclosed income of the assessee at Rs. 3,48 116/- and raising total tax liability at Rs. 3,49,509/-. On 31st May, 1982, 15 the assessee filed a return of income for the assessment year 1980-81 showing total income of Rs. 9,6101-. The concerned Income Tax Officer passed an order on 15th June, 1982 under Section 143(1) accepting the returned income. However, on 16th November, 1983, the ITO, H-ward issued a notice under Sections 147, 148 to the assessee for escapement of his income. The assessee responded to the notice and raised various objections. The assessing officer, by his order dated 14th February, 1986 assessed the appellant's income of at Rs. 1,90,090/- (this included income from undisclosed source amounting of Rs. 1,73,992/- being value of precious and semi-precious stones based on the value by the Appraiser Foreign Post Office, Jaipur of the seized goods by the customs authorities). 3. The assessee challenged the order of the ITO, H-ward, Jaipur passed on 14th February, 1986 by filing an appeal before the Commissioner of Income Tax (Appeals), Rajasthan-II, Jaipur. 4. The Commissioner of Appeals allowed the appeal by his order dated 23rd March, 1988 and set aside the order of assessing officer holding that the reopening of the assessment under Section 147 of the Income Tax Act was bad in law as primary and basic facts were within the knowledge of the assessing officer. 5. 4. The Commissioner of Appeals allowed the appeal by his order dated 23rd March, 1988 and set aside the order of assessing officer holding that the reopening of the assessment under Section 147 of the Income Tax Act was bad in law as primary and basic facts were within the knowledge of the assessing officer. 5. The revenue approached the Income Tax Appellate Tribunal by filing appeal against the order of the Commissioner of income Tax (Appeals). The assessee filed cross objections therein. The Tribunal after hearing the parties by its order dated 27th March, 1992 affirmed the order of the Commissioner of Income Tax (Appeals) and dismissed the appeal of the revenue and the cross objections of the assessee. 6. The Revenue made an application before the Tribunal under Section 256(1) for making reference of the following question of law to the Rajasthan High Court for its answer "Whether on the facts and in the circumstances of the case, the Tribunal was justified in upholding the CIT (A)'s order quashing the re-assessment made under Section 143(3)/148 of the IT Act, 1961?" 7. The Tribunal by its order dated 14th July, 1993 dismissed the said application. It is in these circumstances that the revenue has made this application under Section 256(2) for asking the Tribunal to refer the afore-noticed question to this Court for its opinion. 8. Mr. Anuroop Singhi, counsel for the revenue made two fold submission : (one) that the order dated 14th February, 1986 passed by the assessing officer under Section 143(1) of the Income Tax Act is only an intimation and not an assessment order and yet the Tribunal observed that without taking action under Section 143(2)(b) of the Income Tax Act the proceedings under Section 147 could not have been initiated and (two) that the assessee failed to disclose in his return the income the facts concerning seized goods (emerald and ruby having value of Rs. 3,48,116/-) and, therefore, the assessing officer did not commit any error or illegality in issuing the notice for reopening the case. He would submit that the notice issued to the assessee for reopening the assessment for the assessment year 1980-81 was within time. 3,48,116/-) and, therefore, the assessing officer did not commit any error or illegality in issuing the notice for reopening the case. He would submit that the notice issued to the assessee for reopening the assessment for the assessment year 1980-81 was within time. He, thus, submitted that the question of law arises from the facts of the present case as to whether the Income Tax Appellate Tribunal was justified in upholding the order of Commissioner of Income Tax (Appeals) quashing the re-assessment made under Sections 143(3)/148 of the Income Tax Act, 1961 for the assessment year 1980-81? 9. Mr. J.K. Ranka advocate for the assessee supported the order of the Tribunal and submitted that the matter stands concluded on facts and it does not give rise to any question of law. 10. Though in support of his first contention, that the order dated 15th June, 1982 passed by the assessing officer under Section 143(1) was only an intimation, the counsel for the revenue relied upon the judgment of the Supreme Court in the case of Assistant Commissioner of Income Tax v. Rajesh Jhaveri Stock Brokers P. Ltd., (2007) 291 ITR 500 , yet we find that the observation of the Supreme Court that the acceptance of return under Section 143(1) is an intimation and not the assessment order are referable to the amended provisions of Section 143(1) post April 1, 1989. In so far as the provisions of Section 143(1) as it stood prior to April 1, 1989 was concerned, the Supreme Court held thus : "Under Section 143(1)(a) as it stood prior to April 1, 1989, the Assessing Officer had to pass an assessment order if he decided to accept the return, but under the amended provision, the requirement of passing of an assessment order has been dispensed with and instead an intimation is required to be sent." 11. Thus, the order dated 15th June, 1982 accepting return by the Assessing Officer is an order of assessment. Of course, failure to take steps under Section 143(3) will not render the assessing officer powerless to initiate reassessment proceedings when the order has been passed under Section 143(1). In the case in had, it is not the contention of the assessee that without taking steps under Section 143(3), the assessing officer was powerless to initiate reassessment proceedings having accepted the return under Section 143(1). In the case in had, it is not the contention of the assessee that without taking steps under Section 143(3), the assessing officer was powerless to initiate reassessment proceedings having accepted the return under Section 143(1). The assessee opposed the reassessment proceedings principally on the ground that all basic and primary facts were in the know of 45 the assessing officer when he passed the assessment order on 15th June, 1982 and, thus, reassessment proceedings could not have been initiated on the basis of same material; the action amounts to change of opinion which is not permissible in law. The counsel for the revenue strenuously urged that it was obligatory on the part of the assessee to disclose the facts concerning the seizure of finished goods (emerald and ruby) which he did not and, therefore, on the basis of the new information concerning the seizure of the goods and the report from the customs authorities, the reassessment proceedings were initiated. According to him, the assessing officer did not commit any illegality in initiating the reassessment proceedings on the new information concerning the income the assessee having come to the notice of the assessing officer. We are unable to accept the submission of the counsel for the revenue. As noticed above, the goods were seized by the customs authorities some where in the third week of October, 1979 and after valuation of the said goods having been not done by the customs authorities from the Appraiser, Foreign Post Office, Jaipur, the said goods were delivered to Income Tax Officer under the provisions of Section 132A(2) of the Income io Tax Act, 1961 on 29th December, 1980. As a matter of fact, the ITO, H-ward, Jaipur framed provisional assessment order under Section 132(5) of the Income Tax Act assessing the income of the assessee at Rs. 3,48,1161-. The assessee filed return of income for the assessment year 1980-81 thereafter on 31st May, 1982 and the order under Section 143(1) accepting the return of is income wz,.- passed on 15th June, 1982. The assessing officer, thus, at the time of passing of the order dated 15th June, 1982 had in his possession all primary facts necessary for framing the assessment and it was for him to draw proper inference from those facts which the Income Tax Officer did not do. The assessing officer, thus, at the time of passing of the order dated 15th June, 1982 had in his possession all primary facts necessary for framing the assessment and it was for him to draw proper inference from those facts which the Income Tax Officer did not do. It was, thus, plainly a case of over-sight by the assessing officer and not that the income chargeable to tax had escaped assessment by the reason of omission or failure on the part of the assessee to disclose fully and truly all material facts. Our view finds support from the decision of the Supreme Court in the case of Gemini Leather Stores v. Income Tax Officer, B-Ward, Agra and others, 100(1975) ITR 1 wherein the Supreme Court upon consideration of the decisions in the case of Calcutta Discount Company v. Income Tax Officer, (1961) 41 ITR 191 , Commissioner of Income Tax v. Burlap Dealers Ltd., (1971) 79 ITR 609 ; and Commissioner of Income Tax v. Hemchandra Kar, (1970) 77 ITR 1 , held thus : "In the case before us the assessee did not disclose the transactions evidenced by the drafts which the Income-tax Officer discovered. After his discovery the Income-tax Officer had in his possession all the primary facts, and it was for him to make necessary enquiries and draw proper inference as to whether the amounts invested in the purchase of the drafts could be treated as part of the total income of the assessee during the relevant year. This the Income-tax Officer did not do. It was plainly a case of over-sight, and it cannot be said that the income chargeable to tax for the relevant assessment year had escaped assessment by reason of the omission or failure on the part of the assessee to disclose fully and truly all the material facts. The Income-tax Officer had all the material facts before him when he made the original assessment. He cannot now take recourse to section 147(a) to remedy the error resulting from his own oversight." 12. The consideration of the matter by the Income Tax Appellate Tribunal is in accord with the law exposited by the Supreme Court in the afore-referred case. 13. He cannot now take recourse to section 147(a) to remedy the error resulting from his own oversight." 12. The consideration of the matter by the Income Tax Appellate Tribunal is in accord with the law exposited by the Supreme Court in the afore-referred case. 13. We are, thus, satisfied that the order of Income Tax Appellate Tribunal dated 27th March, 1992 does not give rise to any question of law and the rejection of the application under Section 256(1) is not flawed. 14. The Income Tax Application is, accordingly, dismissed.Application Dismissed. *******