Law:

Section:

Section 143 of the income-tax act, 1961-Assessment-Validity of-Order of commissioner setting aside original assessment order and directing ito to make fresh assessment, was set aside by tribunal but in the interregnum, ito passed fresh order of assessment pursuant to commissioner's order-Whether, original assessment order would stand revived and second assessment order would not survive so that petitioner was entitled to refund of tax as per earlier order-Held, yes Facts The petitioner was assessed to income-tax for the assessment year 1974-75 on 15-10-1974. Subsequently, the Commissioner, acting under section 263(1), took the view that as the petitioner had failed to file an estimate of advance tax under section 212(1), penalty was leviable in this case, and that since the ITO had not charged penalty, the assessment made by him was prejudicial to the interest of the revenue. Consequently, he set aside the assessment order and directed the ITO to make a fresh assessment according to law. On appeal, the Tribunal set aside the order of the Commissioner and remanded the case to him with a direction to pass an order afresh after giving due opportunity of being heard to the petitioner on the question of the leviability of penalty. The Commissioner eventually dropped the revisionary proceedings after considering the assessee's representations. Meanwhile, however, the ITO had passed a second order of assessment pursuant to the Commissioner's directions and also levied penalty under section 21(c ) upon the petitioner. On appeal, the Commissioner (Appeals) observed that in fact the original order of assessment dated 15-10-1974 had been revised, and that since in the course of the original assessment no penalty proceedings were initiated, the penalty proceedings initiated later could not be held to be valid. Accordingly, he quashed the penalty. The petitioner then requested the income-tax authorities to refund the amount which had been realised from him on the basis of the subsequent order of assessment but to no avail. On writ: Held In view of the order passed by the Tribunal setting aside the order of the Commissioner, the original order of assessment dated 15-10-1974…

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