- (1.) PRESENT appeal under Section 260A of the IT Act, 1961 has been filed against the judgment and order dt. 31st March, 2008 passed by Tribunal, Lucknow Bench 'A' Lucknow.
(2.) SUBSTANTIAL questions of law which arise for consideration in the present case are as follows: (I) Whether on the facts and in the circumstances of the case, the Tribunal was justified in holding that absence of concrete evidence of the recording of reasons before issuing notice under Section 148, a procedural lapse only, even when assessee regularly attended the reassessment proceedings, will result in quashing of the reassessment proceedings. (II) Whether on the facts and in the circumstances of the case, the Tribunal was justified in concluding that the AO had not recorded reasons for reopening of the assessment while failing to appreciate that the said reasons were duly recorded and copy of the same was also provided to the assessee as per the order sheet entry dt. 8th Sept., 2006. (III) Whether on the facts and in the circumstances of the case, finding of the Tribunal that reasons recorded by the AO for reopening the assessment were not available on record is not perverse. Brief background of the case is that against the order of reassessment under Section 147 of the IT Act assessee preferred an appeal before CIT(A) -I, Lucknow on the ground that the AO did not provide reasons recorded for issuance of the notice under Section 148 of the Act. The assessee further contended that notice under Section 148 was issued without recording any reasons and even if recorded they were based on the facts and materials already considered by the AO while making the original assessment order. The CIT(A) -I Lucknow in view of the aforesaid facts held the action of the AO as legally not tenable as the recorded reasons were not stated to be available on record and besides an order under Section 143(3) of the Act had been passed before the issuance of notice under Section 148 of the Act. The CIT(A) further held that the notice under Section 148 has been incorrectly issued. Accordingly the CIT(A) quashed the order of reassessment. The Department being aggrieved with the above order of the CIT(A) preferred an appeal before the Tribunal. The Tribunal vide its impugned order dt. 31st March, 2008 upheld the order of the CIT(A) observing as under in para 5 of the appellate order: We have considered the rival submissions and perused the material on record. It is undisputed legal position that before reopening of the assessment, the AO should have recorded the reasons. If the reasons were recorded later, or they are misplaced or were taken out of record, then it is for the Departmental authorities to initiate proceedings and come before the Tribunal with the relevant facts. Once the AO has in the remand proceedings before CIT(A) categorically stated that reasons are not available on record then it is for the Departmental authorities concerned to find out whether the reasons are actually recorded or not and if recorded then why they are not available on record. No evidence of any such enquiry or proceedings has been produced before us. No copy of the alleged order sheet on which the alleged reasons were provided by the Department to the assessee was put up for our perusal. Therefore, in absence of any material to the contrary the only inference of the AO's report in the remand proceedings before the CIT(A) that reasons are not available on record is that such reasons were not recorded. As a result, in absence of reasons recorded for reopening of the assessment, we upheld the order of CIT(A) and dismiss the appeal filed by the Revenue.
(3.) AGAINST the said order in question present Income Tax appeal has been filed.;