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TMI Blog1992 (12) TMI 64X X X X Extracts X X X X X X X X Extracts X X X X ..... Thereafter the Dy. CIT(A) proceeded to consider the appeal on merits of the case and, following the order of the Tribunal, Bangalore Bench, in the case of A.S. Chinnaswamy Raju Bros. Family Trust, Hotel Chalukya, Bangalore, in ITA No, 715/Bang/1987, dt. 15th Dec., 1988, directed the ITO to assess the assessee in the status of specific trust and thus allowed the appeal filed by the assessee. 2. The Revenue is in appeal raising following grounds: "(1) The order of the Dy. CIT(A) is opposed to law and facts of the case. (2) The Dy. CIT(A), by admitting the appeal against the order passed under s. 143(1)(a), erred in directing the AO to assess the assessee as a specified trust. (3) The Dy. CIT(A) ought to have considered the fact th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ell as the assessee denied its liability to be assessed under this Act or to the amount of tax determined by the AO. Therefore, all these aspects of dispute are properly covered by cl. (a) of sub-s. (1) of s. 246 enumerating appealable orders to the Dy. CIT(A) and the CIT(A). His contention was that cl. (a) contains independent provision vis-a-vis the other clauses wherein orders under specific sections are enumerated as appealable. Therefore, he maintained that the appeal was competent before the Dy. CIT(A) and he was justified in giving the direction to treat the status of the assessee as specific trust. In reply, Shri Gopalan, the learned Departmental Representative, urged that the order passed by the ITO under s. 143(1)(a) is only an in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bate it is a foregone conclusion whether the CIT could exercise his beneficial jurisdiction under s. 264 against an intimation given by the ITO under s. 143(1A) of the IT Act, 1961 prior to 1st Oct., 1991. Therefore, resort to the remedy under s. 264 postulated by the learned Departmental Representative is not feasible. 5. As regards recourse to filing of writ, it is left to the discretion of the assessee and I shall not deal with that aspect. 6. Coming to the contentions raised by the learned Representative of the assessee, no doubt, at first blush, they appear to be forceful and carry conviction. It is true that cl. (a) of sub-s. (1) of s. 246 provides for various aspects of disputes and does not contain the 'intimation' under s. 14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... directly on the AOP in view of the fact that the assessee is a private non-discretionary trust, vide ground No. 2 of the grounds of appeal taken before the Dy. CIT(A). Thus, one of the limbs of ground No. 2 taken before the Dy. CIT(A), viz., the status of AOP is not correct and valid has rightly conceded by the learned Representative of the assessee before me. The order of the Dy. CIT(A) shows that he has entertained the dispute regarding status of AOP adopted by the ITO vide para 2 of the appellate order of the Dy. CIT(A). However, following the written submissions as well as the decision of the Tribunal in the case of A.S. Chinnaswamy Raju Bros. Family Trust, Hotel Chalukya, in ITA No. 715/Bang/1987, dt. 15th Dec., 1988, the Dy. CIT(A) d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... representative capacity and not as a collective unit of assessment. Therefore, it cannot be said that the assessee has denied its liability to be assessed under the provisions of the IT Act, 1961. This contention fails and cannot be entertained. From this point of view also the appeal was not maintainable before the Dy. CIT(A). 8. Coming to the challenge based on the ground of "the amount of tax determined", a closer look at the section, shows that such a challenge could be made validly only against an order of assessment under sub-s. (3) of s. 143 or s. 144 where the assessee could object to the amount of income assessed or the amount of tax determined or the amount of loss computed or the status under which the assessee is assessed. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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