A.N. Sen, C.J.
1. This appeal arises out of the judgment and order passed by Ramendra Mohan Datta J., on the 25th August, 1975. The learned judge for reasons recorded in his judgment allowed the writ p'eti-tion filed by the respondent, Khandelwal Brothers Private Ltd., and quashed the notice dated the 28th February, 1972, under Section 148 of the I.T. Act, 1961, for reopening the assessment of the assessee for the assessment year 1963-64.
2. The facts and circumstances have been fully and correctly set out in the judgment of the learned trial judge who has also noted in his judgment the various contentions which were raised before him. The learned judge has also considered a number of decisions in his judgment. On a consideration of the facts and circumstances of the case, the learned judge came to the conclusion that, in the instant case, there were no materials before the ITO, which could lead the ITO to form the belief that the income of the assessee had escaped assessment for failure on the part of the assessee to disclose fully and truly all material facts necessary for the purpose of the assessment. The learned judge also held that the sanction of the Commissioner in the instant case was given mechanically. On these two grounds, the learned judge held that the said notice under Section 148 of the I.T. Act, 1961, was illegal and without jurisdiction and the learned judge quashed the said notice.
3. Aggrieved by the said order, the Union of India has preferred this appeal.
4. The main contention of Mr. B. Pal, learned counsel who has appeared on behalf of the appellant in this case, has been that there were sufficient materials before the ITO on the basis of which he reasonably formed the belief that the income of the assessee has escaped assessment due to failure on the part of the assessee to disclose truly and fully all the material facts necessary for the purpose of assessment of the assessee. According to Mr. Pal, these materials are contained in the list which was annexed to the report which was forwarded by the office of the Commissioner of Income-tax, Bombay, to the Commissioner of Income-tax, Calcutta, West Bengal.
5. Mr. R.C. Deb, learned counsel appearing on behalf of the respondent, has submitted that this document was not there and could not be produced before the learned judge at the time of hearing of the application and this court should not look into the said document and should not consider the same. Mr. Deb has further submitted that in the instant case, admittedly, there has been interpolation of the records of the department. Mr. Deb has argued that as interpolation of the records is admitted, the court should really place no reliance on the records and the court should not look into the said list, and, in any event, should not place any reliance on the said records.
6. Mr. Pal has fairly submitted before us that the relevant materials are there only in the said list which were forwarded by the Bombay ITO to the Calcutta ITO and if the said list cannot be taken into account and/orbe not considered, the department will really have no case. Mr. Pal has, however, drawn our attention to the statement made in para. 7 of the affidavit filed in opposition to the writ petition filed herein and Mr. Pal has submitted that the said statements clearly indicate that the list was there at the time when the affidavit was filed and must have been there at the relevant times.
7. We asked Mr. Pal repeatedly as to why this list could not be produced before the learned trial judge at the time of hearing of the writ petition. Mr. Pal could not give any satisfactory explanation and Mr. Pal eventually stated that he had really no explanation and there could not possibly be any reason why this list could not be produced at the time of hearing.
8. Principles regarding reopening of an assessment are fairly well settled. In that view of the matter, we do not really propose to consider any of the decisions cited before us in the instant case. The crux of the question is whether the list which, it is said, was forwarded by the Bombay ITO along with the report which came from the Bombay office to the Calcutta office, can be looked into and considered.
9. The learned judge in his judgment has noted about the admitted interpolation in the records of this particular case. No satisfactory explanation is there as to why the records had been interpolated. It appears from the judgment of the learned trial judge that after the hearing had been concluded and judgment had been reserved, an opportunity was asked for on behalf of the department to file a further affidavit to explain under what circumstances the interpolation which, according to the department, was made after the affidavits had been filed, came to be made. The learned judge at that stage did not allow, and, in our opinion rightly, any further affidavit to be filed: The learned judge has also recorded in his judgment, as we have earlier noticed, that this list, which according to Mr. Pal, constitutes the only material which could lead the ITO to form the belief necessary to enable the ITO to reopen the assessment could not be produced. As we have earlier noticed, there is no explanation whatsoever as to why the said list, if the said list had been in existence at the relevant time, as it should have been, could not be produced. As this list could not be produced before the learned trial judge, and as no kind of explanation could be offered as to why this list could not be produced before the learned trial judge at the time of hearing of the application, we are of the opinion that the objection taken by Mr. Deb to the production of this particular list at this stage is valid and it will not be proper for us to allow the department to refer to and/or rely on this particular list. If this list cannot be referred to and/or relied upon there will be absolutely no kind of any material whatsoever to lead the ITO to form the belief which is essential to enable the ITO to reopen the assessment Under Section 148. Inview of the admitted interpolation of the records it will, in any event, be difficult for us to place any reliance on the same. If this document cannot be referred to and/or relied upon as, in our opinion, this cannot be done at this stage, the sanction of the Commissioner must necessarily be held to be mechanical. We may also note that in the affidavit filed by the Commissioner in the instant case there is no reference to this particular list or the report which is supposed to have come from the Bombay office. In that view of the matter, we must hold that the learned trial judge in the instant case was right in allowing the writ petition and in quashing the said impugned notice.
10. The appeal, therefore, fails and is dismissed. There will, however, be no order as to costs. All interim orders are vacated.
11. Mr. Pal asks for a certificate on the ground that an important question of law as to the power of the appeal court to look into and consider a particular document which was not produced before the learned trial judge but has been referred to in the affidavit, arises for determination in the instant case. Questions of law relating to reopening of an assessment are well settled by a large number of decisions of the Supreme Court. This question of law relating to the power of the appeal court, as contended for by Mr. Pal, in our opinion, is in the facts and circumstances of this case not such a question of general importance as will require to be determined by the Supreme Court and in that view of the matter we are unable to grant the certificate.
12. I agree.