2011 (7) TMI 528

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....EMENT   1. This appeal is filed by the revenue being aggrieved by the order dated 6.1.2006 passed in ITA No.680/Bang/2005 by the Income Tax Appellate Tribunal, Bangalore Bench, wherein, the appeal filed by the assessee has been allowed by setting aside the order passed by the first Appellate Authority confirming the order passed by the Assessing Officer, wherein refund of amount was denied....

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....assessee-respondent would fall within the provisions of Section 240 (a) to the proviso wherein, refund if any shall become due only on the making of such fresh assessment. It is contended by the learned counsel for appellants that in view of the decision of Hon'ble Supreme Court in the case of Commissioner of Income tax vs. Shelly products and another reported in 2003 vol 261 ITR 367, the assessee....

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....llows:-   "Section 240. Where, as a result of any order passed in appeal or other proceeding under this Act, refund of any amount becomes due to the assessee, the (Assessing) Officer shall, except as otherwise provided in this Act, refund the amount to the assessee without his having to make any claim in that behalf:-   Provided that where, by the order aforesaid,-   (a) An....

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....ng regard to the order passed by the Tribunal which has been confirmed by this Court in ITA No.451/2004 c/w ITA Nos. 449, 448 and 450 of 2004, it is clear that the very notice initiating the proceedings was set aside and wherefore the case would not fall within the ambit of the proviso to Section 240(a) and the decisions of the Hon'ble Supreme Court would not helpful to the appellants in the prese....