COMMISSIONER OF INCOME TAX Vs. MINTU KALITA

JUDGEMENT

(1.) The brief facts are as follows :

(2.) Before the Appellate Assistant Commissioner the contention of the assessee, amongst other things, was that there was no justification for initiation of proceeding Under Sec. 147 and that the assessee was not served with notice Under Sec. 148 and the entire proceedings were bad in law and should be quashed in respect of both the years. The Appellate Assistant Commissioner however, did not accept this contention and disposed of the matter on merits and allowed certain reliefs. Against this, the assessee filed an appeal before the Tribunal and the Tribunal by its order dated 25.10.1988 remanded the matter back to the file of the Appellate Assistant Commissioner for fresh disposal after considering all the grounds raised by the assessee. The DCIT (appeals) (Formerly Appellate Assistant Commissioner) again considered the matter, but he dismissed the appeals.

(3.) Aggrieved by the order the Assesses came in Second Appeal before the Tribunal. The Tribunal after considering the facts and circumstances of the case asked for a remand report from the Assistant Commissioner vide its order dated 28.4.1989. After considering the remand report submitted by the Income Tax Officer, the Tribunal was satisfied that notice Under Sec. 148 of the Act was issued and came to the conclusion that as the Income Tax Officer had issued notice Under Sec. 148 of the Act, he had the jurisdiction to re -assess the income. But it was found that he cannot proceeded to make reassessment as there was no prove that the notices Under Sec. 148 of the Act were served on the assessee. The Tribunal, therefore, cancelled the assessment made by the Income Tax Officer for both the years under reference. Thereafter in pursuance of the direction of this Court in Civil Rule No. 5M/90, a statement of case was drawn up and the following question Under Sec. 256(2) was referred to this Court for opinion. The question is as follows :