1. This appeal by the assessee is directed against the order of the Commissioner (Appeals), dated 9-2-1981 relating to the assessment year 1972-73. The assessee has raised diverse grounds. However, the ground that goes to the root of the assessment is that the impugned assessment which is shown as dated 31-3-1975 is barred by limitation because it was in fact framed beyond the period of limitation.
2. We have heard the parties and we find that this issue was raised by the assessee before the learned Commissioner (Appeals) and he has decided this issue against the assessee. The evidence that the assessee relied upon in support of its contention about the impugned assessment being barred by limitation was in the form of tape-recordings on a cassette alleged to be the conversation between one of the partners of the assessee-firm and the ITO who was making the impugned assessment.
The grievance of the assessee before us, is that this evidence has not been given due weight and the learned Commissioner (Appeals), in para 7 of his impugned order, has made adverse observations against the assessee that 'the aforesaid original tape has not been played in my office and also no further communication has been received from the appellant-firm on this score excepting their letter dated 25-1-1981 in which nothing has been said about the playing of original tape so that the contents thereof could be correctly understood', without justification (sic). In this regard, the learned Counsel for the assessee, Shri P.K. Sabarwal, Advocate, made a statement at the bar before us that he had taken the tape in original to the Commissioner (Appeals) to be played before him but this was not done. He has also drawn our attention to the letter dated 25-1-1981 which is claimed to be a 'resume' of what had transpired after the ITO, Shri Vohra, appeared before the learned Commissioner (Appeals) at 5.30 P.M. on 24-1-1981 at the Commissioner's camp office at Moga. In this letter, the assessee has pointed out to the Commissioner (Appeals) that the ITO, Shri Vohra, stated that, 'he would make a statement but not as a witness on oath in response to a notice under Section 131 and the assessee's stand was that unless he was summoned under Section 131 of the Income-tax Act, 1961 ('the Act') by the Commissioner (Appeals), no legal consequences would follow from any commitment that Shri Vohra may make in his proposed statement before the Commissioner (Appeals). The learned Counsel for the assessee submitted that the assessee had filed evidence in the form of an affidavit of Shri K.K. Puri, a partner of theassessee-firm, and a letter from Shri Harish Chander, the counsel for the assessee, before the Commissioner (Appeals) to support, that what was recorded in the tape was relevant to the impugned assessment proceedings and was record of actual happening that had taken place.
However, it was contended that the Commissioner (Appeals) had made a grievance that except this letter the assessee had not produced original tape for playing. It was contended that the question of limitation is inextricably linked with the evidence in the form of tape and in the context the issue of examination of the then ITO to ascertain the truth of the matter with regard to the evidence is paramount. Since there was no such examination of any party to the tape and since due weight was not given to the version recorded in the tape due to non examination of the parties and non-playing of original tape, the assessee has not been given reasonable opportunity by the Commissioner (Appeals), to establish the case.
3. On the other hand, the revenue claims that the ITO, (Shri Vohra, who completed the assessment, cannot be considered as a party to the proceedings. He, therefore, could not be summoned by the learned Commissioner (Appeals) for examination and the clarification that the assessee may seek on the matter of limitation from him. For this, reliance was placed on the Delhi High Court judgment in the case of Chiranji Lal Ramji Dass v. ITO  115 ITR 842. To this, the learned Counsel for the assessee, in the rejoinder, submitted that the observations of the Delhi High Court relied upon by the revenue are obiter in a writ petition and are not applicable here. The ITO has to clarify the evidence and he can be called by the Commissioner (Appeals) for such purposes. There is no bar anywhere on this procedure. He further contended that the tape is a piece of evidence in view of the Supreme Court judgment in the case of S, Partap Singh v. State of Punjab  4 SCR 733 and must be considered to determine the issue in appeal.
4. We have carefully perused the orders of the authorities below and considered the submissions made by the parties before us. The issue with which we are directly concerned and which we have to determine is whether, on the facts and in the circumstances of the case, the impugned assessment order suffers from limitation and is, therefore, ab initio void. For this purpose the assessee, inter alia, heavily relies on what is alleged to have been recorded in the tape that had been produced before the learned Commissioner (Appeals). From a reading of the order of the Commissioner (Appeals), it appears that he has not examined the issue from all angles and has also not afforded reasonable opportunity to the assessee to produce the original tape for playing it before him and determining its evidentiary worth. But at the same time, the Commissioner (Appeals) has pointed out some defects in the transcript copies that were given to him. This has been done without affording an opportunity of either owning up or denying the statements, allegedly recorded in the tape, by all the parties involved. One of the parties to the tape is claimed to be Shri M.L. Vohra, ITO, who made the impugned assessment. Since some of the material evidence, for determination of the issue whether the impugned assessment suffers from limitation, is recorded in the tape and it is necessary to have properly appreciated, the Commissioner (Appeals) should not have hesitated to examine any of the parties involved, including the ITO.5. Shri K.K. Puri, one of the partners of the assessee-firm, has filed an affidavit before the Commissioner (Appeals) that what is stated in the tape is true and correct. There is also a letter from the learned Counsel for the assessee who appeared before the ITO that the conversation did take place as recorded therein. Therefore, we think it reasonable and fair to both the sides that the learned Commissioner (Appeals) should, without any hesitation, examine this evidence thoroughly after affording reasonable opportunity of being heard to both the sides and himself put their version to test by examining each party to ascertain the veracity of the statements in the tape.
6. He should also carefully consider other relevant evidence with regard to the allegation that acknowledgement of assessment order and notice of demand was got signed by the ITO on a blank form and the date '31-3-1975' is not placed by the assessee nor owned by it as the correct date. However, in doing so he should also bear in mind the observations of the Supreme Court in the case of Jain Bros. v. Union of India  77 ITR 107 that "there is no presumption that officers or authorities who are entrusted with responsible duties under the taxation laws would not discharge them properly and in a bonafide manner". At the same time, as the same Court observed, "if in a particular case any mala fide action is taken that can always be challenged by an assessee in appropriate proceedings".
7. In view of what is stated above and in the interest of natural justice to both the sides, we set aside the order of the Commissioner (Appeals) with the directions that he should decide the appeal de now after complying with the above-mentioned directions. Since we are setting aside his order, as above, we do not consider it necessary to go into the merits of any other grounds.