A.K. Mathur, Actg. C.J.

1. This is an Income Tax reference under Section 256(2) of the Income Tax Act, 1961, at the instance of the Revenue for calling for a reference on the following two questions of law which read as under :

"1. Whether it was merely a change of opinion by the Income Tax Officer because he had considered this matter and had come to a definite conclusion, after obtaining a clarification from the assessee as contained in letter dated March 4, 1961, at the time of original assessment proceedings

2. Whether the sanction obtained by the Income Tax Officer from the Board was not in accordance with law in view of what is stated above "

2. The facts giving rise to this case are thus : The assessee/respondent is a Hindu undivided family. For the assessment year 1960-61, the assessment was completed on March 30, 1965, at a total income of Rs. 73,164. In appeal, the total income was reduced to Rs. 29,164. Subsequently, the Income Tax Officer detected that the land of the assessee was compulsorily acquired and on which the assessee was entitled to receive compensation. The said land was acquired on December 7, 1959, which fell in the previous year relevant to the assessment year 1960-61. The Income Tax Officer came to know that the assessee had concealed substantial gain which had escaped assessment on account of compensation on the said land amounting to Rs. 1,79,000. The Income Tax Officer submitted his proposal to the Central Board of Direct Taxes for initiation of proceedings under Section 147(a) of the Income Tax Act and for issuing notice under Section 148 of the Act. The Income Tax Officer recorded the reasons and worked out the taxable capital gain at Rs. 1,31,448. The Central Board of Direct Taxes approved the proposal and thereafter the Income Tax Officer issued notice under Section 148 of the Income Tax Act. In response to that notice, the assessee filed the return of income on April 5, 1977, declaring income of Rs. 34,089. The Income Tax Officer completed the assessment on July 31, 1981, determining the total income at Rs. 79,061.

3. Aggrieved against the assessment order of the Income Tax Officer, an appeal was preferred before the Commissioner of Income Tax (Appeals) and the Appellate Assistant Commissioner (sic) affirmed the order of the Income Tax Officer. Thereafter, the assessee filed second appeal before the Income Tax Appellate Tribunal and the Tribunal came to the conclusion that the opening of the assessment and reassessment proceedings are void on the ground that it was a case of mere change of opinion by the Income Tax Officer and, secondly, the sanction obtained from the Board was not in accordance with law. Therefore, the Revenue has moved this application for calling for a reference on the aforesaid questions of law.

4. We have gone through the matter and we have perused the order of the Tribunal. The Tribunal on the basis of the facts, has come to the conclusion that there was no ground for reopening of the assessment as there was nothing, but a change of opinion. Although the facts were before the Income Tax Officer and on that basis, he took the decision, but later on, he has sought permission from the Board for reopening of the assessment. Therefore, the Tribunal came to the conclusion that it was. nothing but a mere change of opinion by the Income Tax Officer and, subsequently, the Tribunal also found that the Income Tax Officer has not given the correct facts for obtaining the sanction and on that account, the Tribunal found that the opinion sought on the basis of the wrong facts also vitiates the permission. Hence, in these circumstances, the Tribunal has declined to make a reference and we are of the opinion that the whole case is dependent upon questions of fact and no substantial question of law is involved, therefore, we are not inclined to call for the reference under Section 256(2) of the Act. Hence, the reference application is rejected.