D.K.JAIN, C.J. - (1.) THE Income -tax Appellate Tribunal, Amritsar (for short 'the Tribunal'), has referred under s. 256(1) of the IT Act, 1961 (for short 'the Act'), the following questions for the opinion of this Court : "1. Whether, on the facts and in the circumstances of the case, the Tribunal was right in vacating the finding of the CIT be made on the basis of the same ? 2. Whether, on the facts and in the circumstances of the case, the Tribunal was right in cancelling the order of the ITO
(2.) BRIEFLY stated, the material facts, as emerging from the statement of the case, are as follows : 1977. On an application being moved by the assessee under s. 146 of the Act, the said assessment was reopened on was captioned as "revised". During the course of fresh assessment proceedings, it was categorically stated on behalf of the assessee -company that no notice under s. 139(2) of the Act was served. Furthermore, on being questioned the assessee was unable to produce any evidence of filing of the original return. ignored by the ITO. The ITO held that since the return had been filed after the expiry of more than two years from the end of the assessment year, it was an invalid return and no cognizance of such a return could be taken. Being aggrieved, the assessee took the matter in appeal before the CIT(A), who agreed with the ITO that the return filed
(3.) THE assessee took the matter in further appeal to the Tribunal. By the impugned order, the Tribunal has held that notice under s. 139(2) of the Act having been issued by the ITO, proceedings taken thereafter could not be said to be erroneous or illegal. Accordingly, the Tribunal has reversed the decision of the ITO and CIT(A), directing filing of the 146(1) of the Act. Under these circumstances, the aforementioned questions have been referred for the opinion of this Court. We have heard Mr. D.S. Patwalia, learned counsel appearing for the Revenue and Mr. Akshay Bhan, learned counsel appearing for the assessee. 1977 was pursuant to notice issued under s. 139(2) of the Act and, therefore, it could not be ignored, is based on a wrong premise that the said notice having been issued to the assessee, the same is deemed to have been served. Learned counsel asserts that since the stand of the assessee throughout has been that no notice under s. 139(2) of the Act had ever been served on the assessee, the question of presumption in favour of the assessee did not arise. It is,;