8. The appeal had been admitted to examine the following question of law :
(1) Whether, the Tribunal was correct in holding that the Assessing officer had to record his reasons and based on those reasons form his opinion that the income has escaped assessment by relying on two judgements of this Honourable Court in 133 JTJ? 199 and 155 ITR 748 before reopening assessments when Section 147 has been amended by Direct Tax Laws Amendment Act, 1989, w.e.f. from 1.4.1989 by substituting the words “for reasons to be recorded by him in writing is of the opinion* with the words “has reason to believe”.
(2) Whether the Assessing officer was correct in taking into account the declaration filed by the assessee under the VDIS Sdvsrrte and had reasons to believe that the income chargeable to tax had escaped assessment and correctly brought to tax the said amount declared under the scheme, by re-opening assessment.
(3) Whether the Tribunal was correct in holding that any declaration which has been filed under the VDIS scheme cannot be used as admissible evidence for the purpose of this Act, especially when the scheme has been held to be not applicable.
9. We have beard Sri M V Sheshachala, learned standing counsel for the revenue-appellants and Sri A Shankar, learned counsel for the assessee- respondent
10. Appearing for the appellant-revenue, Sri Seshachala, learned standing counsel for the revenue, submits that the tribunal has committed an error in interfering with the matter and setting aside a well considered order passed by the assessing authority and affirmed by the first appellate authority. Learned counsel would submit that reopening was well within the scope of Section 147 of the Act; that the declaration filed by the assessee definitely can constitute information within the meaning of Section 147 of the Act and in support of this submission, reliance is placed on a Division Bench decision of the Punjab & Haryana High Court in the case of SAT NARAIM vs COMMISSIONER OF INCOME TAX ((2009) 183 TAXMANN 40].
11. While the question as to whether a declaration filed by the assessee under the voluntary disclosure scheme can constitute information for the purpose of reopening under Section 147 may be a debatable point and either way may be the position, it is not open for this court to consider the matter now, as the tribunal has recorded a finding that there was no application of mind on the part of the assessing authority for reopening, particularly, if on perusing the actual reasoning as recorded in the proposition for reopening, which we have already extracted above, we are in full agreement with this view that the assessing authority cannot act on the dictates of the commissioner, who had directed him to reopen the concluded assessment for the year 1991-92, that, in our view also, does not constitute an information within the scope of Section 147 of the Act.
12. Apart from this, Sri Shankor, learned counsel for the respondent- assessee also points out that the sanction itself was defective, for the reason that the sanction was from the commissioner of income tax, whereas the authorised authority for sanction was only the joint commissioner, particularly, as the commissioner will have to act as the appellate authority against the orders passed by the assessing authority.
13. This submission is only reiterating the circumstance that the reopening was bad in law and therefore we cannot accept this submission made on behalf of the appellant-revenue.
14. In the result, this appeal is dismissed, answering the first substantial question of law in the negative against the appellant-revenue and leaving open the other two questions, as they become virtually academic and accordingly they are not answered.