Law:

Section:

Section 251 of the Income-tax Act, 1961 - Commissioner (Appeals) - Powers of Order of Commissioner (Appeals) to set aside assessment which does not involve a proposal for enhancement, cannot be used for the purpose of expanding the scope of the powers available to the Assessing Officer while making fresh assessment pursuant to a set-aside Section 251, or more specifically clause (a) stipulates confirmation, reduction, enhancement or annulment of the assessment. Alternatively, the section envisages setting aside of assessment and referring the case back to the Assessing Officer for making a fresh assessment in accordance with the directions given, and such fresh assessment may either result in some tax becoming payable or there may be a situation where tax may not be payable on the basis of such fresh assessment. However, the material words in provisions are : 'make such fresh assessment', viz. the word 'such' qualifies the assessment to be made afresh in context of the directions given by the appellate authority. Therefore, it is not possible to define a set-aside assessment as either open set-aside or a conditional set-aside or a limited set-aside. The set-aside of assessment made by the appellate authority is always in accordance with the directions given by the appellate authority for making a fresh assessment. But, the most material part of the provision is the opening portion which stipulates 'In an appeal against an order of assessment'. In other words, the entire gamut of powers which are available to the appellate authority is governed within the four corners of the subject-matter of appeal. The subject-matter of appeal is the assessment of income which forms part of the order of assessment in light of the return of income filed by an assessee. There is a subtle, fine distinction between assessment simpliciter, namely, assessment of income, and the assessment order. In practice and in effect an assessment order may contain number of assessments of incomes under one head, depending upon the source of income, and/or under more than one head. Even in case where an appellate authority wants to exercise powers of enhancement under sub-section (2) of section…

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