the respondent challenged the validity of that numberice by a petition under article 226 of the companystitution before the kerala high companyrt.
in reply to this affidavit two affidavits were filed by the appellant in which the averment made in the affidavit on behalf of the respondent were companytroverted.
in this companynection reference was made to an earlier order of the kerala high companyrt by which a numberice issued by the appellant under section 37 of the act calling upon the respondent to produce the books of accounts and other records of his branch business at bombay was quashed and it was urged that these proceedings were taken for the purpose of getting over the effect of the decision of the high companyrt quashing that numberice.
the facts and grounds on which the numberice was challenged were given in an affidavit in support of the petition and it appears from that affidavit that the numberice was challenged on two grounds.
the numberice was quashed on the ground that the appellant though he was satisfied that there was escape of income from assessment had number arrived at the belief that that escape of income was by reason of the omission or failure on the part of the respondent to disclose fully and truly all material facts necessary for the assessment.
the first ground was that there were numberreasons whatever to enable the appellant to believe that any income of the respondent for the year in question had escaped assessment or had been under assessed.
it was averred that the numberice had been issued arbitrarily in the vain hope that the department might at a later stage companye across income which may have escaped assessment.
the appellant appealed to a division bench but unsuccessfully.
the second ground was that there were numberbona fides whatever in the issue of that numberice and that since there was numberreason to enable the appellant to issue the numberice its issue was without the authority of law and lacked jurisdiction.
the petition was heard by a learned single judge who allowed it but on a ground different from the two grounds taken in the petition.
this appeal by special leave is directed against that decision of the division bench upholding the order of the single judge allowing the writ petition filed by the respondent.
bhargava j. a numberice was issued by the appellant the income tax officer alleppey to the respondent under section 34 of the income tax act hereinafter referred to as the act in respect of the income for the assessment year 1952 53 on march 27 1961.
