Law:

Section:

Writ-Writ petition by assesses against notice for reassessment allowed by single judge-Whether on writ appeal by department, department could be permitted to rely on document which was not produced before single judge and for non-production of which there was no reason or explanation-Held, of facts, no Facts A notice under section 148 was served on the assessee. On writ against the impugned notice, the Single Judge held that there was no material before the ITO which could lead the ITO to form the belief that the income of the assessee had escaped assessment for failure on the part of the assessee to disclose fully and truly all material facts necessary for the purpose of assessment. The Single Judge also held that sanction of the Commissioner in the instant case was given mechanically. On these two grounds the impugned notice under section 148 was quashed. On a writ appeal, it was contended by the department that there were sufficient material before the ITO to form the necessary opinion and that the said material was contained in the list which was annexed to the report which was forwarded by the Commissioner, Bombay to the Commissioner, Calcutta. The assessee contended: (i) that the said document could not be relied upon because it was not there and could not be produced before the Single Judge at the time of hearing of the writ; and (ii) that in the instant case there had been admitted interpolation of records and hence the records could not be relied on. The revenue stated (i) that it had no explanation as to why the said list was not produced before the Single Judge; and (ii) there could not possibly be any reason as to why the said list could not be produced at the time of hearing. Held As the said document, i.e., the list could not be produced before the Single Judge at the time of hearing of the application and as no kind of explanation could be offered as to why this list could not be so produced, it would not be proper to allow the department to refer to and/or rely on that particular list. Further, if that list could not be referred to and/or relied upon, there would be absolutely no kind of any material whatsoever to lead the ITO to form the belief…

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