Y.R. MEENA, J. - (1.) ON an application under s. 256(2) of the IT Act, 1961 (`the Act') this Court has directed the Tribunal to refer the following questions for the opinion of this Court. Question referred at the instance of the Revenue reads as under : "Whether, on the facts and in the circumstances of the case, the Tribunal was justified in law in setting aside the order of the CIT under s. 263 of the IT Act, 1961, and restoring the original assessment order ?"
(2.) THE questions referred at the instance of the assessee reads as under : "1. Whether, on the facts and in the circumstances of the case and in view of the order dt. 29th Aug., 1994, passed by the learned CIT, the Tribunal was justified in holding that the principles of promissory estoppel was not applicable to the said order and as such the same was not binding on the CIT who sub-sequently passed order under s. 263 of the IT Act, 1961 ? 2. Whether, on the facts and in the circumstances of the case, the order passed under s. 263 of the IT Act, 1961, cancelling the assessment with a direction to make a fresh assessment by holding the said assessment to be erroneous in so far it was prejudicial to the interests of the Revenue was legal and valid as the said assessment was completed under the order of the earlier CIT himself ? 3. Whether, on the facts and in the circumstances of the case, it was legal and valid for the learned CIT under s. 263 of the Act to hold the earlier order of the CIT as illegal and without jurisdiction on the basis of which the assessment in question was completed and the said assessment to be erroneous and prejudicial to the interests of the Revenue ?" On a scrutiny of the assessment for the asst. yr. 1981-82, the CIT was of the view that the assessment order for the asst. yr. 1981-82 is erroneous and prejudicial to the interest of the Revenue. Therefore, he issued the show-cause notice to the assessee under s. 263 of the Act. On receipt of reply to that show-cause notice, the CIT has considered the reply and in his opinion the assessment order of the ITO under s. 143(3) of the Act for the asst. yr. 1981-82 is erroneous and prejudicial to the interests of the Revenue. He cancelled that order with the direction to make a fresh assessment order in the light of the discussion made in his order, that is, order of the CIT. That order has been challenged by the assessee before the Tribunal, after considering the various submissions of both the sides, the Tribunal has restored the order of the ITO. In appeal before us the learned counsel for the Revenue, Mr. Mallick submits that the Tribunal has not properly appreciated the facts and when no inquiry was made by the ITO, the CIT has rightly set aside the assessment order for the asst. yr. 1981-82. Not only that, the assessee has also changed his stand, which he has taken at the time of raid, on cash of Rs. 5,09,000 found at the time of raid.
(3.) THE learned counsel for the assessee, Mr. Khaitan submits that the material found at the time of raid has been properly explained and the Tribunal has considered all the items in detail with supporting evidence and then only came to the conclusion that there is nothing wrong in the order of the ITO. He has thoroughly investigated the case and he has also complied the direction of the then CIT for investigation and in compliance of his direction the assessment was made. So far cash of Rs. 5,09,000 is concerned there was some misunderstanding. THE cash was for payment to one Bishan Dayal Goel and from where the cash was received its source has been explained, the creditors have been examined and they have confirmed the loan to Goel Industries, wherein the assessee HUF is one of the partners. The assessee filed its return of income for the assessment year under appeal disclosing a total income of Rs. 42,170. This was, however, revised by return filed on 2nd March, 1984 to Rs. 42,160. The return was further revised and income disclosed was Rs. 1,20,400. The income was assessed at Rs. 1,21,550.;