K. SURENDRA MOHAN, J.

1. The petitioner has filed this writ petition challenging Ext. P16 order of the respondent by which, an application for refund of tax paid for the assessment year 1996-97 has been rejected. The issue relates to the assessment year 1996-97. The petitioner was a homeopathy practitioner. It is stated that he has stopped practice at present and is aged 87 years. A search was conducted at the petitioner's clinic and residence on 30/12/1994 and 24/01/1995. Based on the search, assessments were completed on the petitioner. Various discrepancies were found. The discrepancies were found in the stock of medicines in his pharmacy. Therefore, additions were made and the assessment was completed.

2. Aggrieved by the action of the respondent, the petitioner had filed an appeal to the Commissioner of Income Tax (Appeals), Cochin. The Appellate Authority granted a limited relief in the matter. Not satisfied with the relief granted, the petitioner approached the Income Tax Appellate Tribunal. Aggrieved by the relief granted to the petitioner, the Revenue also preferred cross objections to the Tribunal, challenging the findings of the Appellate Authority. Ext. P3 is a copy of the grounds of appeal preferred by the petitioner. The appeal was disposed of by Ext. P5 order of the Tribunal. The Tribunal found that the contention of the petitioner regarding the discrepancy in the manner of assessing the stock had not been examined by the authorities. Therefore, the Assessing Officer was directed to reconsider the issue and to recompute the same.

3. According to the petitioner, though Ext. P5 order was passed on 24/01/2007 no order pursuant to the direction issued by the Tribunal was passed. Section 153(2A) of the Income Act, 1961 (the 'Act' for short) stipulates a time limit for issuing a fresh order in compliance with the direction of the Tribunal. Since the time limit was over, the petitioner submitted an application for refund of the excess tax paid by him. Thereupon, Ext. P16 order was passed rejecting the petitioner's application.

4. According to Adv. Ramesh Cherian John who appears for the petitioner, Section 153(2A) of the Act stipulates that the consequential order pursuant to the direction of the Tribunal ought to be passed within a period of nine months thereof. In the present case, no such consequential order was passed. It is pointed out with reference to Exts. P8 and P11 communications that the petitioner had co-operated with the proceedings and that no attempt to protract the same was made by the petitioner. Since no consequential order was passed within the time limit stipulated by the provision of law, it is contended that, further action in the matter is barred. Therefore, the petitioner seeks a declaration to the said effect and also a direction that he is entitled to refund of the excess tax paid. The counsel places reliance on a number of decisions in support of his contentions.

5. Adv. Jose Joseph appears for the respondent. According to the learned counsel, this is not a case in which sub-section 2A of Section 153 of the Act applies. The said provision applies only in a case where an assessment is set aside and a fresh assessment is directed to be made. In the present case, according to the learned counsel in the first place the assessment order has not been set aside. Secondly, no fresh assessment has been directed to be made. What has been directed is only to consider one issue in the assessment order. It is pointed out by the counsel that there were a number of issues in the assessment order. All of them have been sustained. The Revenue also had objections to the manner in which the Appellate Authority had granted relief to the petitioner with respect to the same issue. It was for the said reason that, the issue was directed to be reconsidered. According to the counsel, what is required in the present case is only to issue a modified order and not to conduct a reassessment. In such cases, it is sub