R.K. Gulati, J. - (1.) This application under Section 256(2) of the Income-tax Act, 1961 (hereinafter to he referred as "the Act"), has been filed at the instance of the Commissioner of Income-tax, Lucknow,
(2.) The facts leading to the filing of the present application are that for the assessment year 1976-77, M/s. Dhampur Sugar Mills Ltd., the assessee, was originally assessed to income-tax by an order dated February 6, 1980. The Commissioner of Income-tax, being of the opinion, that the said assessment order was erroneous and prejudicial to the interest of the Revenue and purporting to exercise his power under Section 263 of the Act, set aside the assessment order with a direction to the assessing officer to make the assessment de novo. Being aggrieved, the assessee appealed to the Income-tax Appellate Tribunal. The Appellate Tribunal, by its order dated May 2, 1983, set aside the order of the Commissioner of Income-tax and in its place restored the assessment order passed by the assessing officer.
(3.) Notwithstanding that the original order of assessment had been restored by the Income-tax Appellate Tribunal and that the order of the Commissioner under Section 263 authorising to make a fresh assessment had been quashed, the assessing officer, long thereafter, vide his order dated March 23/1984, passed a fresh assessment order for the year in dispute in pursuance of the directions given by the Commissioner of Income-tax in his order under Section 263 of the Act. This order was challenged in appeal by the assessee before the Commissioner of Income-tax (Appeals), Bareilly, who allowed the appeal and vacated the fresh assessment order. He held that the impugned order cannot be allowed to stand because the order under Section 263 having been quashed, the very basis authorising the assessing officer to make a fresh order itself disappeared. The Revenue took the matter in second appeal to the Income-tax Appellate Tribunal which dismissed the appeal and confirmed the order passed by the Commissioner of Income-tax (Appeals). Against the order of the Income-tax Appellate Tribunal, the Department sought a reference under Section 256(1) of the Act which was also not granted.;