TMI Blog2004 (9) TMI 42X X X X Extracts X X X X X X X X Extracts X X X X ..... J.- This is a reference made at the instance of the Revenue (Commissioner of Income-tax) under section 256(1) of the Income-tax Act, 1961, to this court for answering the following two questions of law which arise out of an order dated February 28, 1992, passed in I.T.A. Nos. 624 to 627/Ind/1990: "1. Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in holding that the notice issued under section 148 of the Act was illegal? 2. Whether, on the facts and in the circumstances of the case, the Tribunal was justified in law in holding that the returns filed by the assessee were under amnesty scheme?" The assessee was assessed for the years 1978-79 to 1981-82. On January 21/22, 1986, a search operati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder and upheld the notices. The assessee, therefore, filed further appeal to the Tribunal. By the impugned order, the Tribunal allowed the appeal and held that in the absence of any material available for forming an opinion, the Assessing Officer had no jurisdiction to issue notice of reassessment for the assessment years 1978-79 to 1981-82. After recording this finding, the Tribunal did not consider it proper to examine the other question as to whether the assessee could file returns under the amnesty scheme for the years in question and thus could claim immunity. It is against this order, the Revenue felt aggrieved and prayed for reference to be made to this court under section 256(1) of the Act. The Tribunal though initially declined to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r section 148 of the Act, there has to be material for forming an opinion by the Assessing Officer. Absence of material is likely to vitiate the notice. As observed supra, in the present case, material collected in the raid proceedings was the most relevant and decisive material that could be made and was rightly made the basis by the Assessing Officer for reopening of the concluded assessments. We thus cannot countenance the view taken by the Tribunal. It is totally against the record and thus not legally sustainable. We, therefore, answer question No. 1 in favour of the Revenue and against the assessee by holding that the Tribunal was not right in law in holding that the notice issued under section 148 of the Act is illegal. Instead, we a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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