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25. The result of the decisions is to show that the question as to whether there was any omission or failure on the part of the assessee to disclose fully and truly all material facts would be a question of fact, and that if any person wants to contest this conclusion he must raise a question in the reference proceedings challenging this finding specifically.

26. The learned counsel for the assessee, however, sought to contend that in the present case the provisions of Section 147(a) had not been properly applied, because the ITO had before him all the facts relating to the receipt of Rs. 1,75,000 even at the time of the original assessment and that if he did not assess that amount as capital gains, he could not proceed under Section 147(a). For this purpose reliance was placed on a decision of the Supreme Court in Gemini Leather Stores v. ITO . In that case, in the proceedings for the original assessment the appellant had not disclosed certain transactions evidenced by bank drafts. The ITO himself had discovered the facts relating thereto, but by oversight did not bring the amount represented by the drafts to tax as the income of the assessee. Subsequently, he took up proceedings under Section 147(a) of the I.T. Act, 1961, with a view to assess the amount as the income of the assessee from undisclosed sources. On a writ petition before the High Court filed by the assessee, the High Court held that the ITO did not apply his mind to the question whether the amount could be treated as part of the total income of the assessee and that as the assessee did not disclose the source of those amounts which were not recorded in the account books, all the conditions for invoking the jurisdiction under Section 147(a) were present. On appeal to the Supreme Court, it was held, reversing the decision of the High Court, that after discovery of the primary facts relating to the transactions evidenced by the bank drafts it was for the officer to make the necessary enquiries and draw proper inference as to whether the amounts represented by the drafts could be treated as part of the total income of the assessee. As this had not been done by the ITO, it was plainly a case of oversight and it could not be said, it was held, that income chargeable to tax had escaped assessment by reason of the omission or failure on the part of the assessee to disclose fully and truly all material facts. To a similar effect was another decision decided earlier by the Supreme Court in CIT v. Hemchandra Kar . In that case, a HUF consisting of six members had encashed high denominational notes of the value of Rs. 1,29,000. Out of it a sum of Rs. 19,000 was brought to tax in the hands of the family. The balance of Rs. 1,10,000 was assessed in the hands of the members of the family who had encashed the notes. Subsequently, the ITO issued a notice under Section 34(1)(a) of the Indian I.T. Act, 1922, seeking to include the sum of Rs. 1,10,000 in the hands of the family. The assessee disputed this assessment and this dispute ultimately reached the Supreme Court. The Supreme Court held that, because the primary facts were within the knowledge of the ITO when he completed the first assessment, the escapement of income took place by reason of the failure of the ITO to include the sum of Rs. 1,10,000 in the assessment of the HUF and that in such a situation the requirements of Section 34(1)(a) were not satisfied.