M.M.KUMAR, J. - (1.) THIS order shall dispose of IT Ref. Nos. 1 and 39 of 1998 as common question of law and facts are involved. The details in respect of the abovementioned references are as under : Sr. No ITR No Arising out of Asst. yr. Date of the order of the ITAT, Amritsar Bench, Amritsar 1. 1 of 1998 ITA No. 1446/Asr/1989 1980 -81 9.9.1994 2. 39 of 1998 ITA No. 949/Asr/1995 1981 -82 19.4.1996
(2.) THE facts are being referred from IT Ref. No. 1 of 1998. The original assessment in this case had been completed on Shri Ashok Kumar, brother of Shri Raj Kumar, ex -employee of the assessee. During the course of search a cheque book relating to Account No. 350 in the name of Shri Raj Kumar Virk, issued by the Punjab and Sind Bank, New Grain Market, 1979, showing a deposit of Rs. 30,000. The AO proceeded to reopen the assessment under s. 148 of the Act. After considering the explanation of the assessee firm, the AO held that Account No. 350 in Punjab and Sind Bank, Jalandhar in the name of Shri Raj Kumar was actually the account of the assessee firm and he added a sum of Rs. 57,011 by regard to reopening of the assessment holding that the AO had validly and legally reopened the on the basis of material found at the time of search, which was supported by the statements of Shri Ashok Kumar and Shri Raj Kumar. 1989 passed by the CIT(A). The Tribunal while following the law laid down by Hon'ble the Supreme Court in the case of ITO vs. Lakhmani Mewal Das, (1976) 1976 CTR (SC) 220 : (1976) 103 ITR 437 (SC), allowed the appeal by observing as under : "8. In view of the ratio laid down by Hon'ble Supreme Court and applying the same to the facts of the present case, we are of the opinion that the re -opening of the assessment is without any sufficient material on record. The AO has presumed that the entries found in the account No. 350 related to the affairs of the assessee -firm. In fact there is no material on record to justify the reopening. The material brought on the basis of two statement of Sh. Ashok Kumar and Sh. Raj Kumar was not sufficient to re -open the assessment. The AO on the basis of presumption had formed the belief, which cannot be held sufficient in the eye of law. In view of our discussion, we are of the opinion that the re -opening is illegal. We therefore, set aside the order of the CIT(A) and cancel the assessment made as such. Since, we have cancelled the assessment on legal issue, we do not think it proper to discuss the merits of the addition."
(3.) THEREAFTER , the Revenue filed reference application under s. 256(1), which was declined by the Tribunal, vide order of the case has referred the following questions of law for opinion of this Court : "1. Whether on the facts and in the circumstances of the cases, the Tribunal was right in law in holding the reopening of the assessment was without any sufficient material on record ? 2. Whether on the facts and in the circumstances of the case, the Tribunal was right in cancelling the assessment - After hearing learned counsel for the Revenue, we are of the considered view that it is well settled that one Judge of same evidence and material may record a finding different than the one recorded by another Presiding Officer but then it would not constitute a valid ground to conclude that a substantial question of law would arise. The sufficiency or insufficiency of material on record would not be within the domain of this Court as it cannot constitute the basis for reversing the view taken by the Tribunal. Once the Tribunal in its wisdom has held that the material was insufficient for reopening of assessment under s. 148 then it is not possible for this Court to record a contrary finding. Therefore, the first question has to be answered against the Revenue and in favour of the assessee. Moreover, the Tribunal has rightly placed reliance on a judgment of Hon'ble the Supreme Court in the case of Lakhmani Mewal Das (supra). The second question, which is consequential in nature concerning cancelling of assessment by the Tribunal, would necessarily go against the Revenue. For the aforementioned view, we draw support from a Division Bench judgment of Patna High Court in the case of P.K. Haldar & Co. vs. CIT (1999) 156 CTR (Pat) 282 : (1999) 237 ITR 317 (Pat).;