- (1.) THIS appeal has been filed by the assessee, seeking to challenge the order of the learned Tribunal dt. 13th March, 2002, so far it relates to IT Appeal No. 1762/Jp/1994, for the asst. yr. 1992 -93.
(2.) THE facts of the case are, that vide Annex. 1, dt. 11th Nov., 1992, the Dy. CIT (Assessment), Special Range, Jodhpur, sent intimation to the appellant, whereby he intimated amount, determined by him, to be payable by the assessee. This was done in exercise of powers under Section 143(1)(a) of the IT Act, 1961. Thereafter, the appellant was sent notice dt. 9th Dec, 1992, for the regular assessment, fixing the hearing on 8th Jan., 1993. However, during the course of assessment proceedings, the notice was served on the appellant under Section 154 of the Act on 21st Jan., 1993, proposing to make the prima facie adjustment on account of provisions of gratuity under Section 40A(7), and it is alleged, that the appellant filed revised return, declaring the loss of Rs. 55,04,885 for the asst. yr. 1992 -93, on 25th Jan., 1993, instead of the declared loss of Rs. 56,57,685. Then intimation under Section 143(1)(a) was sent to the assessee vide order dt. 28th Jan., 1993, and provisionally assessed/determined the loss at Rs. 53,76,603, and accordingly, the demand was created. Thereafter, the regular assessment, for the asst. yr. 1992 -93 was made vide assessment Order dt. 25th Feb., 1993, computing and assessing the loss of Rs. 16,73,887, and observing rather finding, that the addition of Rs. 2,81,082 made through prima facie adjustment, do not require any modification or amendment, and the observations made in the order dt. 28th Jan., 1993, apply here also, and were treated as integral part of the assessment order. This assessment order has been produced as Annex. 5. Against this, an appeal was filed by the assessee, under Section 246 of the IT Act, 1961, and the learned CIT(A) accepted the same partly, and remanded back to the AO, with the direction to re -examine, and to pass fresh order, after affording the assessee opportunity to lead evidence, in support of the claims, while observing, that regular assessment proceedings under Section 143(3) are different from the proceedings under Section 143(1)(a). Aggrieved of this, the Revenue filed an appeal before Tribunal, and Tribunal accepted the appeal vide Order dt. 13th March, 2002. The assessee seeks to challenge the order of the learned Tribunal allowing the appeal of the Revenue, being Appeal No. 1762/1994.
(3.) THE Tribunal has found, that Section 246 of the Act provides for a separate appeal against the order under Section 143(1)(a), and therefore, the CIT(A) had no jurisdiction to decide the issue. It was found, that the AO has passed the order under Section 154(1)(b), and therefore, the findings recorded by the CIT(A), were reversed on the ground of his having no jurisdiction to decide the issue, in appeal against the order made under Section 143(3) of the Act.;