V. RAMASWAMI J.


We are not satisfied that any question of law arises out of the order of the Tribunal. Learned counsel for the Revenue vehemently contended, relying on a decision of this court in CIT v. Seth Manicklal Fomra that the Appellate Assistant Commissioner has no power to set aside an order of the Income-tax Officer partially and that, therefore, a question of law arises. Factually, we do not find that there is any partial setting aside of the order of assessment. In paragraph 10 of his order, the Appellate Assistant Commissioner has specifically stated that the assessment is set aside. However, it is stated that since he had already deleted two items only and had not decided with reference to the third item relating to cash credit, he has allowed the Income-tax Officer to reconsider. In form, however, he has set aside the entire order of the Income-tax Officer and remitted the matter The decision cited by learned counsel is also not an authority for the position that while setting aside the entire order of the Income-tax Officer, the Appellate Assistant Commissioner cannot restrict the enquiry or the points to be considered. Any other construction will only lead to an incongruous position. Though the Appellate Assistant Commissioner gave his findings on various items, his ultimate findings, according to learned counsel, is that there should be a fresh enquiry and, therefore, the Income-tax Officer can stick to his earlier view. But, even if he sticks to his earlier view, when it comes up before the Appellate Assistant Commissioner,

it could be reversed. Such a situation should not be created. In the circumstances, therefore, the petition will have to be and is dismissed with costs. Counsel's fee Rs. 250.