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6. The Division Bench of I.T.A.T., Indore Bench in the case of M/s. Agarwal Warehousing and Leasing Limited, Indore, in I.T.A. No. 952/Ind/1994 considered the same issue relating to the jurisdiction of the A.O. to issue notice Under Section 143(2) of the Act, after granting refund Under Section 143(1)(a)(ii) of the Act. The assessee's counsel referred to the earlier decision of the I.T.A.T. Indore Bench dated 19th July, 1994, passed in I.T.A. No. 1014/Ind/1993 in the case of M/s. Arihant Builders, Developers & Investors Private Limited and submitted that since the point in issue has already been decided in favour of the assessee, therefore, the A.O. should not have issued notice Under Section 143(2) after refund has been granted to the assessee Under Section 143(l)(a)(ii) of the Act. The I.T.A.T. Indore Bench, in this case, however, was of the view that earlier the decision of Jurisdictional M.P. High Court in the case of Kamal Textiles and Ors., 189 ITR 339, was not brought to the notice of the Tribunal, which is against the assessee on the similar issue. The I.T.A.T. Indore Bench, therefore, considering the matter in issue in the light of decision of the Jurisdictional M.P. High Court in the case of Kamal textiles and Ors. (supra) read with the provisions of Section 143(l)(a)/143(2)(3) and 143(4) of the Act, held that the A.O. was perfectly justified and within his right to issue a notice Under Section 143(2) after refund was granted to the assessee Under Section 143(l)(a)(ii) of the Act. This order was passed on 26th September, 1995. The assessee challenged this order dated 26th September, 1995. In I.T.A. No. 952/Ind/1994 reference Under Section 256(1) was made before the M.P. High Court in Income Tax Reference No. 43 of 1997. Hon'ble High Court referred to the five questions for the purpose of deciding the income tax reference and the question Nos. 1 to 3 were with regard to the binding nature of the decision of the Tribunal, which was refused to follow by the ld. CIT(A) and whether Tribunal was right in reviewing its own decision in the case of Arihant Builders, Developers and Investors, when reference was already pending before High Court. The rest of the questions were with regard to the same proposition whether the A.O. could issue notice Under Section 143(2) after grant of refund Under Section 143(l)(a)(ii). The Hon'ble High Court vide its order dated 11th July, 2002, answered the question Nos. 1 to 3 in favour of the assessee and against the Revenue leaving the remaining questions un-answered. The matter was remanded to the Tribunal for doing the needful in the light of the observations made hereinbefore. The I.T.A.T. Indore Bench in I.T.A. No. 92 of 1996 for the assessment year 1992-93 considered the appeal of M/s. Arihant Builders, Developers & Investors Private Limited on the same question of law, which is now referred to the Special Bench. The Appellate Tribunal vide order dated 22nd August, 1997, followed the latest judgment of I.T.A.T., Indore Bench dated 26th September, 1995, passed in the case of M/s. Agarwal Warehousing and leasing Limited and decided the question in favour of the Revenue and against the assessee. The Appellate Tribunal also referred to in its order that the reference made in M. C. C. No. 103 of 1985 in the case of M/s. Arihant Builders, Developers & Investors Private Limited for earlier assessment year 1991-92, the reference was dismissed due to non-appearance of the applicant Revenue and, therefore, the Hon'ble High Court had declined to answer the question referred by the Tribunal. The Appellate Tribunal, therefore, considered that the order on question of law cannot be said to be the view taken by the Tribunal has been upheld by the High Court. This issue was accordingly decided against the assessee vide order dated 22nd August, 1997. On merits. The Tribunal decided that authorities below are justified in invoking the provisions of Section 145(2) of the Act for rejection of the books of account of the assessee. However, it was directed that the net profit rate, in this case, is to be applied @ 10 % instead of 12.5 % applied by the Assessing Officer. The appeal of the assessee was accordingly partly allowed. This order dated 22nd August, 1997, was challenged before the Hon'ble M.P. High court in Writ Petition No. 1739 of 1997 and the Hon'ble High Court vide its order dated 17.11.2004 set aside the order of the Tribunal dated 22nd August, 1997 in I.T.A. No. 92 of 1996 for assessment year 1992-93 and the Appellate Tribunal was directed to decide the Tribunal afresh in accordance with law. It would be relevant to mention that the assessee in this writ petition has raised the plea that the order in assessment year 1991-92 in I.T.A. No. 1014 of 1993 should have been followed.

9. Ld. counsel for the assessee in the case of M/s. Arihant Builders, Developers & Investors Private Limited raised preliminary objections to the constitution of the Special Bench. The ld. counsel for the assessee submitted that I.T.A.T. Indore Bench in I.T.A. No. 952/Ind/1994 vide order dated 7th February, 2003, referred above question to the Hon'ble President to constitute a Special Bench. He has, however, submitted that in the case of M/s. Arihant Builders, Developers & Investors Private Limited, the I.T.A.T. Indore Bench vide order dated 28th October, 2005, blocked the appeal, because the issue is still to be decided by the Special Bench of the Tribunal as is discussed in the case of M/s. Agarwal Warehousing and Leasing Limited. The ld. counsel for the assessee submitted that since the appeal in the case of M/s. Agarwal Warehousing and Leasing Limited, is requested to be dismissed as withdrawn, therefore, there was no valid reference made by the I.T.A.T. Indore Bench to the Hon'ble President of the I.T.A.T. to constitute the Special Bench. Hence, it goes to show that the order passed by the Division Bench of I.T.A.T. on 28th October, 2005, after decision of the Hon'ble High Court, the letter dated 30th December, 2005, forwarded by the Members of the Tribunal can, by no stretch of imagination, be said to be a reference under Regulation 98-A. Further, in the absence of judicial order making a reference, the present constitution of Special Bench also does not satisfy the Test laid down by the Hon'ble Supreme Court of India in the case of I.T.A.T. v. Dy. CIT and Ors. reported in 218 ITR 275, wherein their Lordships have dealt with the issue and regarding powers of the President to constitute a Special Bench. It was, accordingly, submitted that the matter may be sent back to the Division Bench directing them to maintain judicial consistency and to accept order of I.T.A.T. in I.T.A. No. 1014 of 1993 in assessment year 1991-92, which have become final because of rejection of the reference by the High Court.

12. We further find from the order dated 11th July, 2002, of the Hon'ble M.P. High Court in Income Tax Reference No. 43 of 1997, that the precise issue raised by the assessee before the Hon'ble High Court was with regard to the consistent view to be adopted by the Appellate Tribunal. Hon'ble High Court referred to the decision of the Hon'ble Supreme Court of India in the case of Pradip Chandra Parija and Ors. v. Pramod Chandra Patnaik and Ors. , in which it was held that if the Bench of Two Judges concludes that if an earlier judgment of a Bench is so very incorrect that in no circumstances can it be followed, the proper course for the Bench of two judges to adopt is to refer the matter before it to a Bench of Three Judges. Another decision of Gujarat High Court in the case of Sayaji Iron, 253 ITR 749, is also referred to deal with the almost similar situation laying down the guidelines by holding that if a different view is to be taken by the Bench then matter should be referred to the President of the Tribunal, so that he could have referred the matter to the Bench consisting of three or more Members. The Hon'ble M.P. High Court in the background of the aforesaid decision held in para 11 of the impugned order that the requisite provision is contained in Sub-section (3) of Section 255, where the President of the Tribunal is authorized to constitute Special Bench of Three or More Members in the instant case also. The learned Members of the Indore Bench of the Tribunal instead of reviewing own earlier judgment ought to have referred the matter to the larger Bench. The matter was remanded to the Tribunal to do the needful in the light of the observations. The Division Bench of I.T.A.T., Indore Bench in I.T.A. No. 952 of 1994 referred the aforesaid question to the Hon'ble President for constitution of the Special Bench vide order dated 7th February, 2003. Similarly, a joint request was made for constitution of a Special bench Under Section 255(3)/(4) of the Act, by the I.T.A.T., Indore Bench to the Hon'ble President of the Tribunal to constitute the Special bench in both the cases/appeals vide order dated 30th December, 2005. All these materials were placed before the Hon'ble President of the Tribunal and the Hon'ble President of the Tribunal vide order dated 23rd March, 2006, has constituted this Special Bench for hearing of the question proposed by the Bench. These facts clearly show that the preliminary objections raised by the ld. counsel for the assessee has no force and is liable to be rejected. The Hon'ble President has exercised his plenary powers in order to constitute Special Bench to dispose of these two appeals because of the appropriate and germane grounds in the given circumstances. We may also mention that even if the assessee has made a request for withdrawal of appeal in I.T.A. No. 952 of 1994, would not affect the constitution of the Special Bench in the aforesaid case. The Special Bench is competent and empowered to decide the question referred to it in the light of the material available on record. It appears to us that ld. counsel for the assessee has raised the preliminary objection in the hope that if ultimately the matter is considered by Division Bench of I.T.A.T., it has to follow its earlier order in I.T.A. No. 1014/Ind/1993 dated 19-7-1994, whether such view is legally permissible or not. Considering the facts and circumstances noted above, we are of the view that preliminary objections raised by the assessee is without substance and is rejected.

13. Legal issue before the Special Bench is "As to whether after granting of refund Under Section 143(l)(a)(ii) of the Act, notice Under Section 143(2) could be issued or not ?

14. The facts of the case in the case of M/s. Arihant Builders, Developers & Investors Private Limited are that the assessee company had filed a return claiming refund after adjustment of pre paid taxes. The A.O. processed the return Under Section 143(l)(a) of the Act and the refund was granted to the assessee. Subsequently, the A.O. issued notice Under Section 143(2) of the Act requiring the assessee to appear before him on the date fixed in the notice, he wanted to have some further information in respect of particulars furnished in the return of income. The assessee objected to the issue of the notice Under Section 143(2) on the round that on acceptance of the return filed by the assessee and on granting the refund Under Section 143(l)(a)(ii). the assessment becomes final and the A.O. has no jurisdiction to issue notice Under Section 143(2). In support, the assessee has filed order of I.T.A.T., Indore Bench dated 19th July, 1994, for assessment year 1991-92 in the case of M/s. Arihant Builders, Developers & Investors Private Limited (supra). The contention of the assessee was not accepted by the Assessing Officer on the reasons that only condition laid by Sub-section (2) of Section 143 is that a notice under this section shall be served before the expiry of 12 months from the end of the month in which return is furnished. The assessee challenged the order of the A.O, before the CIT(A) on the same reasons, but the CIT(A) rejected the claim of the assessee and relied upon order of the I.T.A.T., Indore Bench in the case of M/s. Agarwal Warehousing and Leasing Limited, Indore, dated 26th September, 1995, for assessment year 1989-90 in I.T.A. No. 952 of 1992 in which the Tribunal has decided this issue against the assessee.