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TMI Blog1987 (6) TMI 82X X X X Extracts X X X X X X X X Extracts X X X X ..... is opposed by the department. 2. For the assessment year 1981-82 the ITO assessed the total income of the assessee at Rs. 22,72,530. On this amount the ITO calculated the tax payable as follows : I.T. @ 60per cent Rs. 13,63,518 S.C. @ 71/2per cent Rs. 1,02,264 Rs. 14,65,782 Less :Tax paid in advance Rs. 11,50,000 . Tax paid under s. 140A on 6-7-1981 Rs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, set aside this assessment for fresh consideration before the ITO after going through the evidences as would be produced before him. The other grounds taken in respect of charging of interest u/s. 216 may also be looked into at the time of the hearing before him. 4. In the result, the assessment is set aside for making the fresh assessment and for statistical purposes this should be treated as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of fresh assessment of a set aside assessment ". This order was challenged in appeal in which certain other objections were taken, The CIT(A) was of the opinion that " the ITO is correct in refusing the claim of the appellant in this connection as this was a case of partial setting aside of the original order of assessment ". As such he confirmed the order of the ITO. Being aggrieved, the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sub-section does not include an order u/s. 251 made in compliance of an appellate order. 6. We have carefully considered the rival submissions and examined the decision relied upon by the authorised representative for the assessee. Before proceeding further it has to be stated that the department does not any longer rely on the reason given by the ITO (i.e. " this is not a case of simple reductio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 48 was found in the fresh assessment u/s. 251 to be in excess of the amount due. So, in our opinion, all the conditions in the said sub-section were fulfilled. It may be mentioned that it has been found by the ITO in this assessment u/s. 251 and is also not disputed by the department that this amount of Rs. 1,22,148 was paid in excess of the amount due. So, in our opinion, the assessee is entitled ..... X X X X Extracts X X X X X X X X Extracts X X X X
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