R.K. Gulati, J. - (1.) This is an application under Sub-section (2) of Section 256,of the Income-tax Act, 1961, at the instance of the Commissioner of Income-tax, Agra. The question proposed in the application reads as under : "Whether, on the facts and in the circumstances of the case, the Hon'ble Tribunal is justified in quashing the assessment order holding that issue of a notice under Section 148 of the Income-tax Act, 1961, was illegal as the reasons for issue of the said notice were not on record ?" It appears that the assossee had a filed return for the assessment year 1982-83 which was not found to be a return in accordance with law. The Assessing Officer required the assessce to amend the return and to rectify the defects. As this was not done, notice under Section 148 of the Income-tax Act, 1961, was issued to bring to lax the income of the year in question. Against the assessment order passed in pursuance of the notice under Section 148 of the Act, the assessee went up in appeal. The Commissioner of Income-tax (Appeals), Agra, found that no reasons under Sub-section (2) of Section 148 were recorded by the Income-tax Officer before he issued notice under Section 148. Consequently, he held that the assessment in pursuance of such a notice was not valid. However, he has set aside the assessment with the direction that the same should he made de novo after affording an opportunity to the appellant-assessee and after considering the various submissions made by the appellant. The assessee feeling still unsatisfied went up in further appeal before the Income-tax Appellate Tribunal. The Appellate Tribunal allowed the appeal and held that since the Assessing Officer had not recorded his reasons under Subsection (2) of Section 148 of the Income tax Act, 1961, the entire proceedings for assessment were void and should have been quashed. It held that the Appellate Assistant Commissioner erred when he set aside the assessment for a fresh assessment. The Tribunal quashed the assessment order holding it to be illegal and non est. Thereafter, an application under Section 256(1) of the Income-tax Act, 1961, filed by the Revenue having been dismissed, the present application has been filed seeking reference of the question set out above.
(2.) The findings recorded by the Tribunal as well as by the first appellate authority that no reasons had been recorded before issuance of notice under Section 148 have not been challenged either in this application or in the application filed under Section 256(1). On the contrary, we find from the order under Section 256(1) of the Act that the departmental representative conceded before the Tribunal that the reasons for issue of notice under Section 148 were not recorded. In the face of the findings recorded by the appellate authorities, in our opinion, no other view was possible except that the assessment in pursuance of the impugned notice under Section 148 was ab initio void and non est. Section 148(2) says : "The Income-tax Officer shall, before issuing any notice under this section, record his reasons for doing so." Thus, it was imperative for the Income-tax Officer to have recorded his reasons as required by Section 148(2) of the Income-tax Act, 1961, before initiating reassessment proceedings. No authority is necessary in support of this proposition. The answer to the question posed being self-evident, we do not consider that any statable question of law arises out of the order passed by the Income-tax Appellate Tribunal in respect of which any direction need be issued to it for making a reference to this court.
(3.) In view of the above, the application is rejected. The assessee shall be entitled to its costs which we assess at Rs. 125.;