Judgment 1. This is a reference under Sec.256(1) of the Income-tax Act, at the instance of the Revenue. The questions referred to us for our opinion are as follows : "(1) Whether, on the facts and in the circumstances of the case, the Tribunal has rightly held that the concession made by counsel for the assessee on March 26, 1975, before the Appellate Assistant Commissioner in the absence of the assessee to whom notice under Sec.251(2) was issued for hearing on March 31, 1975, was not a valid concession ? (2) Whether, on the facts and in the circumstances of the case, the Tribunal has rightly set aside the order of the Appellate Assistant Commissioner and restored the case to his file for a fresh decision after furnishing an opportunity to the assessee ?" 2. This reference relates to the assessment year 1973-74. The assessee is an "individual" and undertakes tube-well sinking contracts. For the year in question, the assessee filed his return. In terms of the return, the Income-tax Officer applied 10% gross profit rate on the total receipts of the assessee. The total receipts, according to the Income-tax Officer, were Rs. 3,26,874. Assessment was done accordingly. The assessee, being aggrieved by the order of assessment, filed appeal before Appellate Assistant Commissioner. In the course of hearing of the appeal, the Appellate Assistant Commissioner showed to the counsel appearing for the assessee two certificates. One of them was issued by the Executive Engineer, Tube-well Division, Bihar Water Development Corporation Ltd., Purnea, showing payment of Rs. 1,26,814 to the assessee. The other certificate had been granted by the Executive Engineer, P and T, Civil Division, Patna, showing payment of Rs. 21,954. As against these receipts, the assessee had shown receipts from the two engineers at Rs. 1,11,981 and Rs. 19,656, respectively. The gross receipts were thus short by Rs. 14,833 and Rs. 2,298, respectively. When the discrepancy was pointed out to the counsel for the assessee, the latter conceded that there was a mistake in showing the net receipts. Notice was, therefore, issued by the Appellate Assistant Commissioner to the assessee in terms of Sec.251(2) of the Income-tax Act. The notice reads as follows : "Please refer to the above appeal which came up for hearing before me today, i.e., March 22, 1975. Notice was, therefore, issued by the Appellate Assistant Commissioner to the assessee in terms of Sec.251(2) of the Income-tax Act. The notice reads as follows : "Please refer to the above appeal which came up for hearing before me today, i.e., March 22, 1975. A perusal of your books of account showed that during the previous year relevant to the assessment year 1973-74, not a single paise was drawn by you for meeting your household expenses. In the assessment year 1974-75, when the business was carried on as a firm, the total withdrawals made by the two partners were Rs. 9,600. Your representatives admitted be/ore me in writing that you had no other source of income. Please show cause why your income be not enhanced by making suitable addition in respect of household expenses incurred by you during the previous year under review. The reply to this notice should be submitted on 31st of March, 1975, at 11 a.m." 3. After the notice had been served, the appeal was taken up for hearing on March 26, 1975, although the date mentioned in the notice was March 31, 1975. It appears that on March 26, 1975, the counsel for the assessee could not meet the situations created by the certificates granted by the two executive engineers. Counsel, therefore, conceded that an addition was called for on account of wrong statements of receipts from the two executive engineers and also on account of absence of withdrawals for meeting household expenses. The Appellate Assistant Commissioner thus enhanced the assessment as indicated in the notice (annexure B). The assessee, being aggrieved by the order of the Appellate Assistant Commissioner, filed an appeal before the Tribunal. The Tribunal noticed that the notice dated March 22, 1975, called upon the assessee to appear on March 31, 1975, but the appeal had been taken up for hearing on March 26, 1975, when the counsel for the assessee made the concession. In that view of the matter, the Tribunal allowed the appeal of the assessee and remanded the case to the Appellate Assistant Commissioner with a direction that he should proceed afresh in accordance with law after providing opportunity to the assessee. The Revenue, being aggrieved by the order of the Tribunal has got the present reference made before this court. 4. The Revenue, being aggrieved by the order of the Tribunal has got the present reference made before this court. 4. Learned senior standing counsel for the Revenue contended that the Tribunal was not correct in holding that the concession of the counsel does not bind a party. This submission overlooks the crux of the matter. The question referred to us is not whether concession of a counsel binds a party or not. It must be conceded that a concession by a counsel on a question of fact must bind the party. No authority is needed for this proposition, but if any authority is required, reference to the case of Markanda Mahapatra V/s. Varada Kameswar Rao Naidu, AIR 1949 Pat, 197, which is a Division Bench decision of this, court, may be made. There can be no doubt that a concession on a question of fact binds a party. But the real question in this case is whether, in the instant case, the matter could have been taken up for hearing on March 26, 1975, and whether the counsel for the assessee should have been allowed to make a concession on facts on that date. We have not the least doubt in observing that when the assessee had been called upon to show cause on March 31, 1975, at 11 a.m., the matter should not have been taken upon March 26, 1975. One does not know whether the counsel had been instructed by the date on which the matter had been taken up for hearing. Assuming that the party had instructed his lawyer, even then a party is entitled to give fresh and counter-instructions. It is open to him till the date fixed in the notice to take any particular position on facts. In that view of the matter, the counsel in this case had no jurisdiction to make any concession in regard to the additions made in the assessment of the assessee. Thus, the real question is not whether concession on facts is binding or not, but whether the matter could be taken up before the date fixed in the notice or not. There may be cases where cases may be taken up before the due date. But, in that situation, the Income-tax Officer or the Appellate Assistant Commissioner must be fully satisfied that the date of hearing is being pulled back with the instructions of the assessee. There may be cases where cases may be taken up before the due date. But, in that situation, the Income-tax Officer or the Appellate Assistant Commissioner must be fully satisfied that the date of hearing is being pulled back with the instructions of the assessee. In that view of the matter, in the special facts and circumstances of this case, we have not the least hesitation in holding that the Tribunal was right in holding that the concession made by the counsel for the assessee on March 26, 1975, in the absence of the assessee, when the notice under Sec.251(2) fixed March 31, 1975, for hearing was not a valid concession. 5. The second question referred to us is a corollary to the first question. The Tribunal having set aside the order of the Appellate Assistant Commissioner, and ill our view rightly, the only proper course was to remand the case to the Appellate Assistant Commissioner. The assessment could not have been knocked off as a whole. Remand was the natural consequence in that situation. In that view of the matter, it has to be held that the Tribunal was right in remanding the matter to the Appellate Assistant Commissioner after setting aside the order of the Appellate Assistant Commissioner. 6. For the reasons stated above, the two questions are answered against the Revenue with costs. Hearing fee Rs. 250 (Rupees two hundred and fifty). 7. Let a copy of this judgment be transmitted to the Income-tax Appellate Tribunal in terms of Sec.260 of the Income-tax Act, 1961.