Sankar Prasad Mitra, J. - (1.) In this application under Article 226 of the Constitution the petitioner has questioned the validity of a notice dated 24th March, 1965, issued by the respondent No. 1 under Section 148 of the Income-tax Act, 1961, for the assessment year 1948-49. The original assessment order under Section 23(3) of the Indian Income-tax Act, 1922, was passed on the 16th January, 1952. The petitioner's case was that, during the assessment year 1948-49, it had obtained loans from five several persons aggregating Rs. 85,000. In 1957, the original assessment of the 16th January, 1952, was reopened by a notice under Section 34(1)(a) of the Act of 1922. The petitioner was called upon to prove the genuineness of these loans. Affidavits affirmed by the said five persons were filed before the Income-tax Officer stating that they had made advances to the partnership firm, namely, the petitioner, but the Income-tax Officer in his fresh assessment order under Section 23(3)/34 added the loan of Rs. 85,000 as the assessee's income from undisclosed sources. The petitioner preferred an appeal to the Appellate Assistant Commissioner. The Appellate Assistant Commissioner by his order made on the 7th October, 1964, held that " there was no valid service of notice under Section 34(1)(a)". He stated further that: "The Income-tax Officer who made the original assessment had made enquiries about those loans and had accepted them as genuine. No fresh information has come into the possession of the succeeding officer to show that the position was otherwise. Besides, it does not appear unlikely that Raibahadur Shadi Lal and the ladies of his family did have the means to advance those loans. I cannot see my way to sustain this assessment and the Income-tax Officer's order is vacated."
(2.) The department was not satisfied with the order of the Appellate Assistant Commissioner and preferred an appeal to the Appellate Tribunal. The grounds of appeal were as follows : "(1) That, on the facts and in the circumstances of the case, the learned Appellate Assistant Commissioner erred in holding that there has been no valid service of the notice under Section 34(1)(a). (2) That the learned Appellate Assistant Commissioner also erred in holding that there was no material to justify initiation of proceedings under Section 34(1)(a). (3) That the learned Appellate Assistant Commissioner erred in giving his observation that it does not appear unlikely that Raibahadur Shadi Lal and the ladies of his family did have the means to advance the loans."
(3.) On the 25th March, 1965, the department prayed for permission to withdraw the appeal to the Tribunal. The permission was granted and the appeals stood dismissed as withdrawn. But, on the 24th March, 1965, another notice was issued to the petitioner under Section 148 of the Income-tax Act, 1961. It appears from paragraph 8 of the affidavit-in-opposition of Monoranjan Ghosh affirmed on the 27th July, 1965, that before the notice was issued permission was sought from the Central Board of Direct Taxes to initiate proceedings under Section 147(a) of the 1961 Act.;