K.S.Hegde,J.

(1) CIVIL No. 1172 of 1971 is by special leave and Civil Appeal No. 1990 of 1968 is by certificate. These two appeals raise the same question for decision. In a reference under S. 66(2) the Tribunal referred to the High court of Gujarat the following question:

"WHETHER, on the facts and in the circumstances of the cage, there was a material irregularity in the notice issued to the assessee under Section 34 and dated 28/02/1958 and if so, whether such irregularity vitiated the proceedings taken under the said notice?"

The High court answered that question in the affirmative and in favour of the assessee. Aggrieved by that decision, the Commissioner of Income Tax, Gujarat has brought this appeal.

(2) THE facts of the case as set out in the statement of case are these:

(3) THE concerned assessment year is 1949-50, the relevant previous year being S. Y. 2004 ending on 1/11/1948. For that assessment year the assessee was assessed. At the time of that assessment, the assessee pleaded that his account books had been destroyed during the communal riots in March, 1948. He also denied having any bank account. Some time after he made the a