A.N.Sen, J. - (1.) The department has preferred this appeal against the judgment and order passed by T. K. Basu J. on the 28th February, 1973 (See [1975] 100 ITR 531). By this order, the learned judge for reasons stated in his judgment quashed several notices issued by the ITO under Section 148 of the I.T. Act, 1961, for reopening the assessments of the assessee, Hongkong and Shanghai Banking Corporation (hereinafter referred to as the assessee or the bank), for the assessment years 1950-51 to 1960-61.
(2.) The assessee filed this writ petition in this court under Article 226 of the Constitution challenging the validity of the various notices issued under Section 148 of the I.T. Act, 1961, for reopening the assessment of the bank for the assessment years 1950-51 to 1960-61. In the said application an affida-vit-in-opposition was filed on behalf of the departmeat by one Ranabir Prosad Dobe affirmed by him on the 22nd November, 1965. As the said affidavit, according to the learned trial judge, was of no assistance and did not furnish any material, the learned trial judge gave the department another opportunity of filing a further affidavit. Pursuant to leave granted by the court a further affidavit was filed by one Sailesh Kumar Chakra-borty affirmed on the 28th May, 1970. It appeared that in the said affidavit filed by Sailesh Kumar Chakraborty, ITO, "C" Ward, there was a palpably incorrect statement. The attention of the learned trial judge was drawn to the said false statement made in the said affidavit and Mr. Suhas Sen, learned counsel, who appeared on behalf of the department before the learned trial judge, tendered an apology on behalf of the deponent for the obviously untrue statement made by him in the said affidavit. In view of the apology tendered before the learned trial judge, the learned trial judge did not pursue the matter any further. The learned trial judge had called for the records and the reasons which were recorded for the purpose of reopening the assessment were also produced before the learned trial judge and copies thereof were tendered by consent of the parties before the learned trial judge. The learned trial judge has set out in his judgment the recorded reasons. The learned trial judge carefully considered the facts and circumstances of this case and also the recorded reasons and on a consideration of the materials the learned trial judge was of the opinion that there were no materials which could lead to the formation of belief on the part of the ITO that the income of the assessee had escaped assessment on account of any failure or omission on the part of the assessee to disclose truly and fully all the material facts. In other words, the learned trial judge was of the opinion that the requirements of Section 147 of the Act were not complied with and the ITO did not have the jurisdiction to issue the notices. The learned trial judge, therefore, made the rule absolute and passed an order quashing the said notices.
(3.) Against the said order of the learned trial judge, this appeal has been preferred by the department. In the paper book printed by the department in this appeal the affidavit of Sailesh Kumar Chakraborty which was filed before the learned trial judge and which became the subject-matter of comment was not included. In place of the said affidavit of Sailesh Kumar Chakraborty containing the untrue statement for which an apology was tendered en behalf of the deponent before the learned trial judge, another affidavit, alleged to have been affirmed by him on the 28th May, 1970, which was in fact never affirmed by him and which did not form any part of the proceeding before the learned trial judge was included. In the affidavit which was included in the paper book alleged to have been affirmed on the 28th May, 1970, the material paragraph containing the untrue statement in the affidavit of Sailesh Kumar Chakraborty filed before the learned trial judge was not there. At the time, when the appeal came up for hearing the attention of this court was drawn to this fact by Dr. Pal, learned counsel appearing on behalf of the respondent-bank. Mr. Suhas Sen, learned counsel appearing on behalf of the appellant asked for adjournment of the appeal for the purpose of looking into the matter and Mr. Sen at that point of time had also submitted before the court that if he did not find any satisfactory explanation as to how this had happened he might not press the appeal. When the appeal came up for hearing on the adjourned date Mr. Sen stated before us that he would not be pressing the appeal. It appears to us that he was not obviously satisfied as to how this thing had happened. On the aforesaid statement of Mr. Sen we dismissed the appeal on that occasion, as the appeal was not pressed. Thereafter an application was made on behalf of the appellant for recalling the said order of dismissal of the appeal. The main ground urged for recalling the order of dismissal was that the learned counsel had no authority not to proceed with this appeal. It was further urged that it was the duty of the learned counsel to proceed with this appeal and the dismissal of the appeal on the ground that the same had not been proceeded with has caused the department serious prejudice. On a proper consideration of the said application we recalled the earlier order of dismissal and directed the appeal to be restored to the list and we also gave liberty to the department to file a supplementary paper book containing the affidavit affirmed by Sailesh Kumar Chakraborty which was in fact filed before the learned trial judge.;