Samir Kumar Mookerjee, J.
1. In this rule the petitioner challenges the order of the ITO, 'H'-Ward, Companies, District-V, dated March 29, 1976. The petitioner was assessed to tax with regard to the assessment year 1972-73 by an order dated July 8, 1974, but in making the assessment the vacancy allowance claimed by the petitioner was not allowed by the ITO though the income from house property constituted one of the heads of total income of the petitioner. The petitioner challenged the said order of assessment and the AAC, Range 'AF', by his order dated December 9, 1975, accepted the grounds raised on behalf of the petitioner and directed the ITO to recompute the income under the head 'Income from house property' after allowing deduction in respect of the portion of the property whichremained vacant for the part of the year during the relevant accounting period. On recomputation, the impugned order of the ITO was passed.
2. It has been contended before me by Mr. Roychowdhury in support of the rule that in carrying out the directions of the AAC, the ITO failed to follow the statutory provision as contained in Section 24(ix) of the I.T. Act for determining the vacancy allowance and, as such, the impugned order is liable to be quashed and the ITO should be directed to recompute the income under the head 'Income from house property' in conformity with the statutory provision and in the light of the directions of the AAC. It has been pointed out by Mr. Roychowdhury that the impugned recomputation does not disclose any basis or material in support of the ITO's particular figure on account of vacancy allowance. In support of his contention that it was the duty of the ITO to carry out the direction of the AAC, Mr. Roychowdhury has placed reliance on a decision in Bhopal Sugar Industries Ltd. v. ITO : 40ITR618(SC) . In my view, the decision does not have any application to the facts of the present case, but even then it is clear that the ITO in making the recomputation did not follow the statutory provision in fixing the vacancy allowance as has been mentioned above.
3. Mr. Samar Banerjee, learned counsel appearing with Mr. R. C. Prasad on behalf of the respondents, has contended that the petitioner had an alternative remedy by way of appeal before the AAC and, as such, was not entitled to invoke the writ jurisdiction of this Hon'ble Court. In support of his contention, Mr. Banerjee relied on the decision in Abhai Ram Gopi Nath v. CIT : 79ITR339(All) , as also on the case in CIT v. Seth Manicklal Fomra : 99ITR470(Mad) , and Mr. Banerjee tried to contend that this was a case of a fresh assessment. In reply, Mr. Roychowdhury, learned counsel for the petitioner, relied on a Division Bench judgment of this Hon'ble Court in CTO v. Jasodalal Ghosal (P.) Ltd.  44 STC 31, which lays down that even in a case where an alternative remedy was available by way of appeal, if, in view of the fact that a rule was issued by this Hon'ble court upon entertainment of the writ petition, the said remedy became unavailable due to the bar of limitation, it would not be fair to refuse relief to the petitioner on that technical ground. The said principle applies with full force to the facts of the present case.
4. Upon consideration of the respective submissions made and as detailed hereinbefore and also in view of the statement made by Mr. Samar Banerjee, learned counsel for the respondents, on instruction from his clients that the Department is contemplating to recall the said impugned order of assessment and to recompute the income under the head 'Income from house property'. I direct that the impugned order of ITO bequashed and he should proceed to determine the vacancy allowance afreshin accordance with law. In the result, I make the rule absolute, quash theimpugned order of assessment with liberty to the respondents to recompute the income from house property of the petitioner in the light of theobservation of the AAC, as referral to hereinabove, in accordance withlaw.
5. There will be no order as to costs.