JUDGMENT JUDGMENT judgment of court was delivered by G. G. SOHANI, Actg. C. J. -By this reference under section 256(1) of Income-tax Act, 1961 (hereinafter referred to as " Act "), Income-tax Appellate Tribunal, Jabalpur Bench, has referred following question of law to this court for its opinion: " Whether, on facts and keeping in view order of Appellate Assistant Commissioner dated June 1, 1978, Appellate Tribunal was justified in holding that assessment order has merged with order of Appellate Assistant Commissioner particularly when point of cash credit was not subject of appeal by assessee before Appellate Assistant Commissioner? " material facts giving rise to this reference briefly are as follows: While framing assessment for assessment year 1975-76, Incometax Officer called upon assessee to prove genuineness of nine cash credits in different names in accounts of assessee. assessee produced confirmatory letters from creditors which were accepted by Income-tax Officer. Aggrieved by part of order passed by Income-tax Officer, assessee preferred appeal before Appellate Assistant Commissioner which was decided on June 1, 1978. Thereafter, Commissioner in exercise of powers conferred by section 263 of Act, set aside order of assessment according to law. Aggrieved by order passed by Commissioner, assessee preferred appeal before Tribunal. Tribunal held that order of Income-tax Officer got merged with order of Appellate Assistant Commissioner and Commissioner had no jurisdiction to revise it under section 263 of Act. Aggrieved by that order, Revenue sought reference and it is at instance of Revenue that aforesaid question of law has been referred to this court for its opinion. When reference came up for hearing before Division Bench of this court on February 1, 1985, Division Bench directed that reference be heard along with M. C. C. No. 99 of 1980 (supra p.203) which was to be heard by larger Bench and where similar question was referred to this court for its opinion. As held by us in M. C. C. No. 99 of 1980 (CIT v. K. L. Rajpur [1987] 164 ITR 203), which we have decided today, question framed by Tribunal is too wide and it does not bring out real issue which arose before Tribunal. We, therefore, reframe that question as follows: " Whether, on facts and in circumstances of case, Tribunal was justified in holding that Commissioner was not competent under section 263 of Act to set aside entire order of assessment passed by Income- tax Officer when that order was subject-matter of appeal preferred by assessee before Appellate Assistant Commissioner? " For reasons stated in our judgment delivered today in M. C. C. No. 99 of 1980 ([1987] 164 ITR 203), our answer to question framed by us is in affirmative and in favour of assessee. In circumstances of case, parties shall bear their own costs of reference. *** COMMISSIONER OF INCOME TAX v. SIMPLEX METALICA