AJIT K. SENGUPTA, J.

( 1 ) IN this reference under Section 256 (1) of the Income-tax Act, 1961, at the instance of the Revenue, the Tribunal has referred for our opinion the following question of law relating to the assessment year 1979-80 :"whether, on the facts and in the circumstances of the case, the Tribunal is right to give a finding on the validity and the authenticity of the signature of an Issuing Officer under Section 148 of the Income-tax Act, 1961, in M. A. No. 51/ (Cal) of 1989 and in I. T. A. No. 1912/ (Cal) of 1985 for the assessment year 1979-80 or whether there is sufficient material on record to come to the conclusion that the purported signature on the notice issued under Section 148 of the Income-tax Act, 1961, bears the signature of the Issuing Officer ?"

( 2 ) SHORTLY stated, the facts relating to the question are that, pursuant to a notice issued under Section 148 of the Act read with Section 147 (b), a reassessment was completed under Section 143 (3 ). In the first appeal, the Commissioner of Income-tax (Appeals) held that the initiation of the proceedings under Section 147 (b) was unauthorised as it resulted from a change of opinion by the successor-Assessing Officer. He, therefore, cancelled the assessment. Alongside the contention against the assumption of jurisdiction for reassessment, the assessee also raised before the Commissioner of Income-tax (Appeals), the question of validity of the notice itself issued under Section 148, initial jurisdiction apart. The allegation was that the notice did not contain the distinct signature of the Income-tax Officer. On this contention, the Commissioner of Income-tax (Appeals) gave no finding inasmuch as the assessment itself had been quashed by him on grounds of want of initial jurisdiction.

( 3 ) THE Revenue preferred an appeal against the order of the Commissioner of Income-tax (Appeals) cancelling the proceedings under Section 147 (b) on the question of initial jurisdiction. The assessee did not, however, file any cross-appeal or cross-objection against the action of the Commissioner of Income-tax (Appeals) in ignoring the assessee's objection to the validity of the notice itself.

( 4 ) THE Tribunal initially passed an order in favour of the assessee upholding the findings of the Commissioner of Income-tax (Appeals) as to the non-applicability of the provisions of Section 147 (b) and the invalidity of the initiation of the proceeding. The Tribunal also did not go into the question whether, apart from lack of jurisdiction, the reassessment was illegal as the notice under Section 148 itself was not valid and in conformity with the requirement of Section 148 itself. The Tribunal, however, eventually, on a miscellaneous petition filed by the assessee, purporting to be a petition under Section 254 (2), heard the assessee's pleading as regards the illegality of the notice itself by reason of the manner of signature by the Issuing Officer appearing on the notice.

( 5 ) THE Tribunal finally pronounced on the question of the validity of the notice under Section 148 and held that the said notice does not bear the authentic signature of the Issuing Officer.

( 6 ) AT the outset, what troubles us is why the Tribunal took the extraordinary course of making such a pronouncement when this was not at all the subject-matter of appeal before the Tribunal. The statement of facts itself records that the Department contested the admission of the miscellaneous petition on the ground that the assessee, having impliedly acquiesced in the refusal of the Commissioner of Income-tax (Appeals) to deal with the point of legality of the notice, could not have made an issue. The argument resisted by the Revenue before the Tribunal appears to us to be valid in the circumstances of the case. There should not have been a place for a miscellaneous petition under Section 254 (2), nor the occasion for the Tribunal to pass an order thereon. By having passed an order on the miscellaneous peti

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