( 1. ) IN this writ petition under Article 226/227 of the Constitution of India, the petitioner is assailing the order dated August 22, 1997, passed by the Indore Bench of the Income-tax Appellate Tribunal in Appeal No. I. T. A. /92/ind/96. By the order impugned, the Tribunal had refused to follow the earlier view taken by it. The facts relevant for the disposal of this case are as under.

( 2. ) THE petitioner is engaged in the construction work. For the assessment year 1991-92, it had filed its return. The Assessing Officer framed the assessment under Section 143 and ordered the refund under Section 143 (1)

(a) (ii ). Thereafter the Assessing Officer issued a notice under Section 143 (2 ). The assessee raised the contention that once an assessment is framed and refund is ordered, then no notice could be issued under Section 143 (2 ). That contention was repelled by the Assessing Officer. The matter was taken in the appeal by the assessee to the Commissioner of Income-tax (Appeals) who too maintained the order of the Assessing Officer. Against the said order, the petitioner preferred further appeal before the Tribunal, Indore Bench. By the order dated July 19, 1994, the Tribunal accepted the contention of the assessee and categorically held that once an assessment is framed and refund is ordered then, no notice could be issued under Section 143 (2 ). It is pertinent to point out that against the said order, the Revenue sought and the Tribunal made a reference to this court under Section 256 (1 ). The reference was registered as M. C. C. No. 103/1995. The M. C. C. came up for hearing on August 23, 1996. Since nobody appeared on behalf of the Revenue, therefore the Division Bench declined to enter upon the merits and dismissed the reference application in default of appearance.

( 3. ) FOR the assessment year 1992-93, the petitioner/assessee filed its return of income. After the summary scrutiny, the assessment was framed and like the previous year refund was ordered. It is undisputed that after the refund was ordered, the Department issued notice under Section 143 (2 ). Once again, the assessee raised the objection that notice under Section 143

(2) was invalid and in support of his contention, the assessee relied upon the decision of the Tribunal given in its appeal for the previous year as mentioned hereinabove. The Assessing Officer vide his assessment order dated February 13, 1995, framed the assessment ignoring the earlier order of the Tribunal on the ground that the view taken by the Tribunal was not acceptable to the Department as a reference was made. The Assessing Officer thus framed the assessment under Section 143 (3 ). Against the said order, an appeal was preferred by the assessee before the Commissioner of Income-tax (Appeals), but in vain. It is also pertinent to point out that when the appeal was pending before the Commissioner of Income-tax (Appeals), the Tribunal in another matter of Agrawal Warehousing and Leasing Ltd. v. CIT took a contrary view. The Commissioner of Income-tax (Appeals) while deciding the appeal preferred by the petitioner, preferred to follow the view taken by the Tribunal in Agrawal Warehousing and Leasing Ltd. instead of the earlier view of the Tribunal which was taken in the earlier appeal preferred by the present petitioner. Against the order of the Commissioner of Income-tax (Appeals), the petitioner once again preferred an appeal before the Tribunal. Thus apparently, two conflicting views on the point whether after the refund a notice under Section 143 (2) could be issued or not was before the Tribunal. It was the duty of the Tribunal to take recourse to the provisions contained in Section 255 (4) to resolve the apparent conflict. Instead of doing so, by the order impugned, the Tribunal although criticized the Assessing Officer for not maintaining judicial discipline by following the orders of the higher authorities, held that since in Agrawal Warehousing and Leasing Ltd. s case, th