B.C.Basak, J. - (1.) In this application under Article 226 of the Constitution of India, the petitioner is challenging an order of assessment dated March 24, 1969, passed by the respondent No. 1 for the assessment year 1956-57, tinder Section 144 read with Section 147(a) of the I.T. Act, 1961 (hereinafter referred to as the " said Act "), the order dated December 11, 1973, passed by the respondent No. 2 and the order dated March 26, 1975, passe4 by the respondent No. 4.
(2.) The facts of this case are as follows : For the assessment year 1956-57, the petitioner was assessed Under Section 23(3) of the Indian I.T, Act, 1922. By his order dated 25th of February, 1964, the ITO issued notice under Section 148 of the Act. By his order dated 24th of March, 1969, the respondent No. 1 completed the assessment under Section 144 of the Act. There was non-compliance with the notices issued asking the petitioner to file returns for the assessment year 1956-57. The petitioner filed a petition under Section 146 of the Act for reopening the said assessment but the said application was rejected on 24th of February, 1970. The petitioner preferred an appeal against the said assessment order on various grounds before the AAC. From the grounds of appeal, it appears that no question of limitation was raised before the AAC. The AAC passed his order on 11th of December, 1975, rejecting the appeal. It also does not appear from his order that any such contention was raised before him. Thereafter, the petitioner preferred an appeal before the Income-tax Appellate Tribunal. The grounds of appeal before the AAC do not show that any such question of limitation had been raised. The Income-tax Appellate Tribunal set aside the order of the AAC and restored the matter to his file for fresh consideration on the ground that the AAC has not given any finding with regard to the contentions raised before him. Accordingly, the appeal was treated as allowed. It appears from the order of the Tribunal that the representative of the petitioner appearing for the first time sought to submit before the Tribunal that the assessment was barred by the law of limitation. The Tribunal did not allow the petitioner to raise the ground relating to jurisdiction of the respondent No. 1 to make assessment on 24th of March, 1969, as it was raised neither before the ITO nor before the AAC as it required investigation of facts. Being aggrieved by the said order this application has been made against the orders passed by the ITO, the AAC and the Income-tax Appellate Tribunal.
(3.) Mr. Ghosh, the learned advocate appearing in support of the rule, has contended that the Tribunal has acted wrongly. The point sought to be argued before the Tribunal was a pure question of law. The office files regarding service of notices for the assessment year in question would show when such notice was served as referred to in Section 253(2). Even if no such point of remand was raised by the petitioner at any stage before, it was incumbent upon the Tribunal to go into this point. He has further submitted that the matter has been remanded by the Tribunal only in respect of the submissions which were sought to be raised by the petitioner and which were not dealt with by the AAC. He has submitted that though a reference application lies from the order of the Tribunal, that is, though he had an alternative remedy that is no bar to this application.;