K.S. Paripoornan, J.
1. At the instance of the Revenue, the Income-tax Appellate Tribunal (in short, 'the Tribunal') has referred the following question of law for the decision of this court :
'Whether, on the facts and in the circumstances of the case, the Tribunal was justified in law and in fact in confirming the order of the Appellate Assistant Commissioner cancelling the assessment ?'
2. The respondent is an assessee to income-tax. We are concerned with the assessment year 1970-71. The original assessment was reopened by issue of notice under Section 148 of the Income-tax Act on March 7, 1979. The notice was served by registered post on March 8, 1979. It was served on the assessee on April 21, 1979. The assessee contended that proceedings are barred by limitation since the notice issued under Section 148 read with Section 147 of the Act was not 'service on or before March 31, 1979,' which is the last date of limitation. This plea was not accepted by the assessing authority ; but it was accepted by the first appellate authority by its order dated September 2, 1983. The Tribunal by its order dated May 30, 1986, concurred with the above decision of the first appellate authority and held that the assessment is patently barred since the notice issued under Section 148 of the Act was served after March 31, 1979. It was held that the proceedings are ab initio invalid. The assessment made in pursuance of the said notice was cancelled.
3. It is, thereafter, at the instance of the Revenue, that the question of law, formulated hereinabove, was referred by the Tribunal for the decision of this court.
4. We heard counsel. In R. K. Upadhyaya v. Shanabhai P. Patel : [1987]166ITR163(SC) , the Supreme Court has held that service of notice is not a condition precedent under the Income-tax Act, 1961, to confer jurisdiction on the Income-tax Officer. It is only a condition precedent for the making of the order of assessment. It was further held that once notice was issued within the period of limitation, jurisdiction becomes vested in the officer to proceed to reassess ; and it was held that the notice sent in that behalf was not barred by limitation. In the light of the recent decision of the Supreme Court in R. K. Upadhyaya's case : [1987]166ITR163(SC) , we have to hold that the Tribunal acted erroneously in law in confirming the order of the Appellate Assistant Commissioner who cancelled the assessment. The Supreme Court decision referred to above is an authority for the proposition that it is sufficient if the notice is issued on or before March 31, 1979. So, we have to hold that the assessment made in this case is not ab initio void. We answer the question referred to this court in the negative, against the assessee and in favour of the Revenue.
5. A copy of this judgment under the seal of this court and the signature of the Registrar will be forwarded to the Income-tax Appellate Tribunal, Cochin Bench.