JUDGMENT By the Court.—Heard Sri S.K. Garg learned Counsel for the appellant and Sri D.D. Chopra learned Senior Standing Counsel for respondent. 2. The appellant has filed the instant appeal under Section 260-A of the Income Tax Act, against the order dated 28.2.2007 passed by the Income Tax Appellate Tribunal, Lucknow Bench, Lucknow. 3. The brief facts of the case are that for the assessment year 2000-2001, a notice dated 27.3.2003 under Section 148 of the Income Tax Act, 1961 (hereinafter referred as an ‘Act’) was issued to the appellant. The appellant thereafter filed return on 30.4.2003 under the provisions of Section 148 of the Act. Thereafter assessment order dated 28.2.2005 was passed by the Income Tax Officer 6(2) Kanpur. The appellant being aggrieved by the said order filed an appeal before the Commissioner of Income Tax (Appeals) II Kanpur. The said appeal was disposed of by the judgment and order dated 18.12.2005. Being aggrieved by the order passed by the appellate authority, the appellant filed an appeal before the Income Tax Appellate Tribunal, Lucknow Bench, Lucknow. The said appeal preferred by the appellant was allowed by the Tribunal and the matter was remitted back to the Commissioner Income Tax (Appeals) II Kanpur by the impugned order dated 28.2.2007. 4. Learned Counsel for the appellants submits that notice dated 27.3.2003 issued under Section 148 of the Act was served upon the appellant on 31.3.2003 and as such the assessment order passed by the Assessing Authority was time barred. He further submits that before the Income Tax Appellate Tribunal, an affidavit under Rule 10 was filed by the appellant which was uncontroverted by the respondent and as such instead of remitting the matter to the Commissioner, Income Tax (Appeals), the tribunal ought to have allowed the appeal and set-aside the assessment order being time barred. He further submits that all the material facts were available before the Tribunal and it was obligatory upon the Tribunal to decide the appeal on merit instead of remitting the same to Commissioner Income Tax (Appeals). The learned Counsel for the appellant has relied upon the decision reported in (2003) 264 ITR 28 , Ravi Iron Industries v. Director of Investigation and others, and the judgement of Hon’ble the Supreme Court reported in AIR 1988 SC 2123 , K. Krishna Reddy and others v. Special Dy. Collector, Land Acquisition Unit II. 5. The learned Counsel for the appellant has relied upon the decision reported in (2003) 264 ITR 28 , Ravi Iron Industries v. Director of Investigation and others, and the judgement of Hon’ble the Supreme Court reported in AIR 1988 SC 2123 , K. Krishna Reddy and others v. Special Dy. Collector, Land Acquisition Unit II. 5. Sri D.D. Chopra learned Counsel for the respondents submits that there is no illegality in the order passed by the Assessing Authority as well as in the order passed by the Income Tax Appellate Tribunal as the appellant will again have an opportunity before the Commissioner Income Tax (Appeals) before whom the appellant never pressed the ground of service of notice on merit. 6. We have considered the submissions made by the learned Counsel for the parties and gone through the record. 7. With the consent of the parties, we are deciding the appeal at the admission stage. 8. It is admitted case of the parties that notice dated 27.3.2003 under Section 148 of the Act was sent to the appellant through speed post on 31st March, 2003. The appellant after receiving the notice under Section 148 of the Act, filed return before the Assessing Officer on 30th April, 2003. In the application dated 13th September, 2004, the appellant has specifically stated that the notice was served upon the appellant on 31st March, 2003. Before the Tribunal, an affidavit under Rule 10 was filed by the appellant regarding the service of notice and in the said affidavit also it was stated by the appellant that notice was served on 31st March, 2003. The Tribunal in the impugned judgment and order has mentioned that the contents of the said affidavit were not rebutted by the department and therefore the possibility of notice reaching to the addressee on the same date, cannot be ruled out and even then the appeal was remitted back to the Commissioner, Income Tax (Appeals) for expeditious disposal of the issue after proper verification. 9. Hon’ble the Supreme Court in the case of K. Krishna Reddy and others (supra) has held that the appellate power of remand ought not to be exercised lightly and it shall not be exercised unless there is total lack of evidence. The Commissioner, Income Tax (Appeals) has given the finding to the fact that the limitation of time for finalising the assessment was 31.3.2005. The Commissioner, Income Tax (Appeals) has given the finding to the fact that the limitation of time for finalising the assessment was 31.3.2005. Although the appellant has specifically stated before the Assessing Officer that the notice dated 27.3.2003 which was sent by speed post on 31.3.2003 was served on him on 31.3.2003 itself. The entire material was before the Income Tax Appellate Tribunal, Lucknow Bench, Lucknow when the impugned order was passed. 10. We are of the view that there was sufficient material before the Tribunal to decide the issue whether the notice was served upon the appellant on 31st March, 2003 or not and there was no occasion for remitting back the matter to the Commissioner, Income Tax (Appeals). 11. We, therefore, allow the instant appeal and set aside the impugned judgment and order dated 28.2.2007 passed by the Income Tax Appellate Tribunal, Lucknow Bench, Lucknow. The Tribunal shall restore the appeal preferred by the appellant to its original number and decide the same afresh on merit in accordance with law expeditiously, preferably within six months. Till the matter is finally disposed of by the Tribunal, the impugned recovery proceedings dated 20th March, 2007 initiated by the Income Tax Officer 6 (2) Kanpur shall remain in abeyance. ————