Rajesh Balia, J. - (1.) : Heard learned counsel for the parties.
(2.) HAVING heard learned counsel for the parties, we are of the opinion that no substantial question of law for consideration arises in this appeal under s. 260A of the IT Act, 1961. The facts of the case are that in respect of asst. yr. 1990-91, return of income was furnished by the respondent-assessee on 31st Dec., 1990, declaring loss of Rs. 49,65,836. This return was processed under s. 143(1)(a) with certain adjustment in the loss returned and an intimation to that effect was issued and served upon the assessee. Thereafter, it has been noticed that deduction for Rs. 7,00,000 on account of deposit made against bank guarantee furnished has been wrongly claimed and allowed under s. 43B of the Act. After the intimation under s. 143(1)(a) was sent, a notice for regular assessment under s. 143 (1)(a) was issued on 18th April, 1991, and proceedings for regular assessment under s. 143(3) came into existence. It appears that thereafter the AO was of the opinion that prima facie the deduction of Rs. 7,00,000 claimed by the assessee as bottling fees, represented as deposit with the bank for obtaining the bank guarantee for ensuring such payment as per interim order passed by this Court in the matter relating to demand raised as bottling fees in case the petitioner failed, was not allowable expenses on the ground that such deposit cannot be considered as actual payment. Therefore, after issuing notice under s. 154 on 4th March, 1992, an order under s. 154 rectifying the intimation under s. 143(1)(a) was passed disallowing the bottling fees claimed by assessee and a direction was issued to charge tax on additional amount on such sum of deduction disallowed by rectification. The said order of rectification was challenged by the assessee before the CIt(A), Udaipur, who dismissed the same vide order, dt. 11th Sept., 1995, and further appeal was preferred before the Tribunal, Jodhpur Bench, Jodhpur.
(3.) THE Tribunal found that aforesaid mistake was not rectifiable mistake and, therefore, AO was not justified in initiating the proceedings under s. 154 of the Act. THE Tribunal following its earlier decision in the case of assessee held that disallowance of aforesaid claim under s. 43B is not sustainable by way of rectification of intimation under s. 143(1)(a) of the Act and accordingly the order of rectification was set aside. Aggrieved by this order, the present appeal has been preferred wherein Revenue has formulated the following questions stated to be substantial question of law that arise for consideration in the appeal as under : (i) "Whether, on the facts and in the circumstances of the case, the Honourable Tribunal is justified in holding the disallowance of bottling fee amount to Rs. 7 lacs to be not sustainable on the ground that the provisions of s. 43B would not apply in a case where cash payment was made to the bank for obtaining bank guarantee ignoring the fact that s. 43B deals with "actual payment" and bank guarantee cannot be equated with actual payment ?" (ii) "Whether, on the facts and in the circumstances of the case, the Honourable Tribunal was justified in law in holding that the disallowance under s. 43B did not fall in the ambit of s. 143(1) (a) of the Act ?" On the other hand, Sh. N.M. Ranka, learned counsel for the respondents, urges that so far as disallowance of bottling fees on substantive basis is concerned, it has already been subject-matter of regular assessment in which AO has disallowed the said claim but the assessee's claim has been allowed by the Tribunal, in its appellate order arising out of regular assessment for the very asst. yr. 1990-91, concerning the very same issue. It is contended that since proceedings for regular assessment have been installed, no proceedings under s. 143(1)(a) could take place, nor any new intimation under s. 143(1)(a) could emanate thereafter by way of rectification of original intimation to create a new liability which now become subject-matter of enquiry under regular assessment proceedings. With the commencement of proceedings under s.143(2), the intimation under s. 143 (1)(a), which in the absence of proceedings, under s. 143(2) r/w s. 143(3) would have taken the shape of regular assessment, but once proceedings commence under s. 143(2) or s.143(3), the intimation under s. 143(1)(a) remains an intimation only of self-assessment with prima facie adjustments made by the AO and becomes adjustable as per regular assessment. All issues then become open to be gone into by the AO and any proceedings thereafter cannot be taken which remain of provisional character only. All questions must be decided in regular proceedings which alone shall attain finality. That is the clear ratio emanating from decision of Supreme Court in CIT vs. Gujarat Electricity Board (2003) 181 CTR (SC) 28 : (2003) 260 ITR 84 (SC) and applied to a like case as in hand by Calcutta High Court in like circumstances to hold that rectification of an intimation under s. 143(1)(a) is not permissible after issuance of notice under s. 143(2). Reliance was placed upon the decision of Honourable apex Court in CIT vs. Gujarat Electricity Board (supra) and decision of Calcutta High Court in CIT vs. Coventry Spring & Co. Ltd. (2002) 177 CTR (Cal) 579 : (2002) 257 ITR 632 (Cal). It has been urged that regular assessment under s. 143(3) had already taken place and travelled upto Tribunal. The Tribunal in appeal against regular assessment has held in favour of assessee and allowed the deduction in question on merit. The order of Tribunal arising from regular assessment has been subjected to appeal under s. 260A. Said appeals for different assessment years have been admitted by considering that a substantial question of law arises for consideration in such appeals. ;