- (1.) Civil No. 1172 of 1971 is by special leave and Civil appeal No. 1990 of 1968 is by certificate. These two appeals raise the same question for decision. In a reference under S. 66 (2) the Tribunal referred to the High court of Gujarat the following question: "Whether, on the facts and in the circumstances of the cage, there was a material irregularity in the notice issued to the assessee under section 34 and dated 28/02/1958 and if so, whether such irregularity vitiated the proceedings taken under the said notice -the High court answered that question in the affirmative and in favour of the assessee. Aggrieved by that decision, the Commissioner of Income Tax, gujarat has brought this appeal.
(2.) The facts of the case as set out in the statement of case are these:
(3.) The concerned assessment year is 1949-50, the relevant previous year being S. Y. 2004 ending on 1/11/1948. For that assessment year the assessee was assessed. At the time of that assessment, the assessee pleaded that his account books had been destroyed during the communal riots in march, 1948. He also denied having any bank account. Some time after he made the assessment the Income Tax Officer came to know that the assessee had bank accounts during the relevant accounting year. Hence, he sought to commence proceedings under S. 34 of the Indian Income Taxact, 1922. On 28/02/1958 he issued notices both under S. 22 (2) as well as under S. 34 of the. Act. In his notice under S. 22 (2) he mentioned that he was going to reassess the assessee for the assessment year 1949-50. But in his notice under S. 34 he stated: "Whereas, I have reason to believe that your income assessable to income-tax for the year ending 31st of March, 1949 has escaped assessment. . . . . . . ,. "the notice under S. 34 referred to the assessment of the assessee for the accounting year ending 1947, whereas the notice under S. 22 (2) referred to the assessment of the assessee for the accounting year ending november, 1948. After the receipt of those notices the assessee addressed a letter to the Income Tax Officer on 19/11/1958 pointing out the discrepancy about the assessment years mentioned in the two notices and further requested the Income Tax Officer to clarify the position, whether the notice was under S. 34 (1) (a) or S. 34 (l) (b). The Income Tax officer did not choose to reply that letter but proceeded to reopen and reassess the assessee. Aggrieved by that order the assessee went up in appeal to the Appellate Assistant Commissioner. The Appellate Assistant Commissioner allowed his appeal on the ground that the S. 34 notice was invalid. But on a further appeal taken by the Commissioner, the tribunal reversed the decision of the Appellate Assistant Commissioner. It held that the irregularity in the notice did not in any manner prejudice the assessee. Thereafter, as directed by the High court, the tribunal submitted to the high court the question set out earlier. We have earlier referred to the opinion given by the High court.;