1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T INCOME TAX APPEAL NO.121/2010 KAILASH CHANDRA SONI Vs. ITO, WARD 2(1), UDAIPUR Date of Judgment : 22.11.2010 HON'BLE MR. JUSTICE A.M. SAPRE HON'BLE MR. JUSTICE C.M. TOTLA Mr. Anjay Kothari, for the appellant. BY THE COURT : (PER HON'BLE A.M. SAPRE,J.) This is an appeal filed by the assessee under Section 260-A of the Income Tax Act against an order dated 30.6.2009 passed by I.T.A.T., Jodhpur (for short called Tribunal) in I.T.A. No.196/JU/2006 for the period AY 2001- 2002. 2. By the impugned order, the Tribunal allowed the Revenue's appeal in part and reversed the order of Commissioner of Appeals on the issue raised in this appeal and in consequence remanded the case to CIT (Appeal) for deciding the issue of cash credit again. 3. So the question that arises for consideration in this appeal is whether it involves any substantial question of law within the meaning of Section 260-A ibid? 4. Having heard the learned counsel for the appellant and on perusal of record of the case, we are inclined to dismiss the appeal in limine as in our opinion the appeal does not involve any substantial question of law as is required to be made out within the meaning of Section 260-A ibid. 5. The issue arises out of assessment year 2001- 2 2002. By impugned order, the Tribunal while deciding the appeal remanded the case to Commissioner of Appeals in so far as it deals with the issue relating to cash credit for fresh decision on its merits and has also held that the proceedings initiated under section 143(2) ibid against the assessee are within limitation. 6. In our opinion, so far as issue relating to cash credit is concerned, the same is not yet finally decided by the Tribunal one way or other and as observed supra, is remanded to the Commissioner of Appeal for deciding the same afresh after taking into consideration the additional evidence. An issue, which is remanded, cannot be assailed in this appeal by the assessee because it has not yet attained finality on merits. It is yet to be gone into. It cannot be disputed that the Tribunal being a last court of appeal on facts has jurisdiction to remand the case to first appellate court i.e. Commissioner of Appeal for fresh adjudication any issue relating to facts. This is what is done in this case when the issue is remanded to Commissioner of Appeal. Needless to observe, the assessee would be free to challenge the finding of Commissioner of Appeal in further appeal, if it is decided against him after remand. This in our opinion does not involve any substantial question of law within the meaning of section 260-A ibid. The submission of learned counsel made on this issue, which was mostly on facts, is therefore found to be devoid of any substance. It is accordingly rejected. 7. Learned counsel for the appellant (assessee) then argued that tribunal erred in holding that the assessment proceedings initiated under section 143(2) of the Act are within limitation. According to him, it should have been held that since the notice of such assessment was not properly served on the assessee but it was served on wrong person, 3 and hence on such invalid service of notice, the assessment of the appellant for the year in question cannot be made. Learned counsel further urged that when the assessee had filed an affidavit denying the service him then the same should have been believed to be true for holding that the service of notice was not a valid one for initiating the assessment proceedings. 8. We find no merit in this submission of learned counsel for more than one reason. In the first place, this is a pure question of fact and once it was gone into by the Tribunal on facts by appreciating the evidence of assessee in the form of affidavit on the basis of record of the case then in such event, it is not possible for this Court to again hold any kind of factual inquiry by appreciating the evidence. Secondly, as rightly held by the Tribunal, the assessee had filed only his self serving affidavit and hence in the absence of any other independent evidence, it is not possible to examine this issue again in this appeal and lastly, such question does not involve any question of law much less substantial question of law. 9. In our opinion, the Tribunal therefore rightly, held the proceedings initiated against the appellant under section 143(2) ibid to be legal and proper. They had to be given effect to by doing proper assessment of the assessee in respect of assessment year in question on its merits in accordance with law. 10. In the light of forgoing discussion, we find no merit in the appeal. It fails and is accordingly dismissed in limini by holding that it does not involve any substantial question of law. No costs. [C.M. TOTALA ], J. [A .M. SAPRE],J. /Anil/