Allahabad H.C : Whether, on the facts and in the circumstances of the case, the Tribunal was legally correct in holding that the ITO was not justified in initiating proceedings under s. 147 (b) of the Act ?

Counsel Appeared

Standing Counsel, for the Revenue

R. K. GULATI, J.:

These are two applications under s. 256(2) of the IT Act, 1961, which relate to the asst. yrs. 197980 and 1980-81. We have heard learned counsel for the Revenue. Despite due notice, the assessee has not put in appearance and none was present for the assessee when the case was heard today. We have gone through the common order passed by the Tribunal giving rise to these applications and ave also seen the other orders passed by the relevant authorities.

The reassessment orders which were framed under s. 147(b) for the above two years were set aside by the Tribunal following its earlier order for the asst. yr. 1977-78. From the order under s. 256(1), it is evident that for the asst. yr. 1977-78, the Tribunal itself has granted a reference to this Court under the said provision. However, for the disputed years, references have been refused on the ground that for an intervening year, namely, 1978-79, reference was refused by the Tribunal.

In our opinion, the common question proposed in these applications as a question of law does arise from the order of the Tribunal. For deciding the issue in appeal for the disputed years, the Tribunal gave no separate reasoning except placing reliance on its earlier order for the asst. yr. 1977-78. The Tribunal has already held in granting reference for that year that its decision does involve a question of law. When the reference has been granted for the basic year, we find it difficult to appreciate how the Tribunal could take a different view for the years in question without indicating any distinguishing features. We are not aware of the circumstances in which the reference for the asst. yr. 1978-79 was refused by the Tribunal. We cannot say whether the facts and circumstances for the year 1978-79 were similar to the year in dispute or for that matter to the year 1977-78. The decision of the Tribunal will stand or fall according to the result in the reference for the asst. yr. 1977-78 which is already pending for disposal before this Court.

Accordingly, we direct the Tribunal, ‘B’ Bench, New Delhi, to draw up a statement of the case and to refer the following common question of law for the years in question for the opinion of this Court:

As the assessee has not put in appearance, there shall be no order as to costs. “Whether, on the facts and in the circumstances of the case, the Tribunal was legally correct in holding that the ITO was not justified in initiating proceedings under s. 147 (b) of the Act ?”

[Citation :180 ITR 665]