1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. J U D G M E NT D.B.INCOME TAX APPEAL NO.64/2010 DR. SAHIB RAM GIRI VS. ITO, WARD-3, SRIGANGANAGAR & ANR. Date of Judgment : 20.7.2010 PRESENT HON’BLE MR. JUSTICE A.M. SAPRE HON’BLE MR.JUSTICE DINESH MAHESHWARI Mr.Shafi Mohd. & Mr.Nimesh Suthar for the appellant <><><> BY THE COURT: This is an appeal filed by the Assessee under Section 260-A of the Income Tax Act, 1961 ('the Act') against an order dated 04.01.2010 passed by the Income Tax Appellate Tribunal ('the Tribunal') in ITA No.443/JU/2008. 2. By the impugned order dated 04.01.2010, the Tribunal has partly allowed the appeal filed by the Revenue and, while modifying the order of the CIT (Appeals) in relation to the issue of professional income, has remitted the issue regarding payment of rent of hospital building as claimed by the assessee-appellant for re-determination to the Assessing Officer ('AO'). 3. It is submitted by the appellant that on the facts and in the circumstances of this case, the authorities were not 2 justified in applying the provisions of Section 145 of the Act particularly when there was no valid reason for rejection of books of accounts nor any valid defect therein was pointed out. It is further submitted that on the facts and in the circumstances of this case, the AO was not justified in proceeding under Section 143 (2) of the Act and the appellant's case was not liable for compulsory scrutiny because there remained no tax liabilities in relation to the previous assessment years after the order of the Tribunal dated 18.08.2006 that was passed before passing of the assessment order in question on 13.12.2006. It is also submitted that on the facts and in the circumstances of this case, the Tribunal was not justified in remitting the matter to the AO on the question regarding rent paid for the hospital building where the issue had already been settled in the case of the landlord. 4. So the question that arises for consideration in this appeal is as to whether the appeal involves any substantial question of law within the meaning of Section 260-A ibid? 5. Having heard the learned counsel for the assessee- appellant and on perusal of the record of the case, we are of the view that the appeal does not involve any substantial question of law within the meaning of Section 260-A ibid and hence, the appeal deserves to be dismissed in limine. 6. So far the question regarding the proceedings for assessment by way of compulsory scrutiny is concerned, it cannot be said that the AO had no jurisdiction to proceed with the assessment and to take up the matter for compulsory scrutiny particularly in view of the additions made in relation 3 to the appellant's assessments for the previous years. Any order later on passed in relation to such previous years cannot be said to have rendered the assessment proceedings for the assessment year in question without jurisdiction. 7. So far the question regarding rejection of books of accounts is concerned, the matter relates to appreciation of evidence and essentially relates to the questions of fact. Moreover, the Tribunal has taken note of the fact that the AO found glaring defects in the books of accounts maintained by the assessee; and since the accounts suffered from such defects where reasonable and correct income could not be deduced, the AO proceeded to reject the account so maintained by the appellant by application of provisions of Section 145 (3) of the Act. The AO stated the reasons for rejecting the books of accounts, inter alia, in the following: “It is noticed that the assessee has simply written the names of the patients consulted/admitted. The complete addresses of the patients are not available anywhere in the books of a/c/registers/documents maintained and produced by the assessee, hence, the volume of the practice and rates of fees charged by the assessee is not open to verification. Moreover, the books of a/c and registers appear to have been written in one sitting and in the same handwriting which shows that the books of a/c and register/documents presented by the A/R of the assessee has specifically been got prepared by the assessee for presentation before the department. Hence, the Veracity of these books of a/c/registers/ documents is not reliable and thus, the provisions of Sec. 145 (3) of the IT Act, 1961 are 4 applicable in this case and accordingly the books of a/c maintained by the assessee are hereby rejected.” 8. Though the learned counsel for the appellant attempted to argue that the patient registers were maintained as per the requirements of law and in the prescribed format, however, for the reasons assigned by the AO, we are unable to find any error in rejection of books of accounts and we see no reason to interfere with such findings in this appeal. The submissions as made in this regard do not lead any question of law what to say of a substantial one. 9. So far the question of rent payment is concerned, it is noticed that the appellant claimed having paid rent to his wife at the rate of Rs.10,000/- per month but in view of the questions calling for determination in this regard, the Tribunal chose to remit this issue back to the AO with the following observations:- “We, therefore, set aside the order of Ld. CIT (A) and remit the matter back to the assessing authority with the direction to set out complete and correct facts with respect to ownership of half of the building, if any, by Smt.Divya Jyoti and also make clear reference or document through which the assessee claims to have incurred liability of rent in that regard. Thereafter the assessing officer shall take a decision in accordance with law after allowing reasonable and effective opportunity of being heard to the assessee. In the result, appeal by revenue stands partly allowed for statistical purposes.” 5 10. In our opinion, the order aforesaid does not decide the rights of the parties; rather it has afforded an opportunity to the assessee-appellant to place his case before the AO and to get the issue tried in accordance with law. It cannot be disputed that the Tribunal while exercising the appellate powers has the jurisdiction to remit the question to AO or to the First Appellate Authority as it may deem fit and proper depending upon the facts of each case. In such circumstances, if in the facts of this case, the Tribunal formed an opinion to remit the issue to AO for re-determination, no fault can be found in this approach of the Tribunal. It does not make out any substantial question of law within the meaning of Section 260-A ibid. 11. In view of the foregoing discussion, we find no merit in this appeal. It is accordingly dismissed in limine. (DINESH MAHESHWARI), J. (A.M. SAPRE), J. MK