BESIX KIER DABHOL S.A, MUMBAI V. ADIT (IT)-3(1), MUMBAI

ITA 1088/MUM/2009

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 2739 (ITAT-MUMBAI)
• Duration Of Justice: 9 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-12-2009
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2000-2001
• Appeal Filed On: 17-02-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S S RANAS M KESHKAMAT
• Assessee Lawyers: DHAMESH BATNAKRISHNA KANAKIA
• Keywords: Set aside
• Section: 263; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, B BENCH, MUMBAI. BEFORE S/SHRI R.S.SYAL, AM & R.S.PADVEKAR,JM I.T.A. NO. 1088/MUM/2009 ASSESSMENT YEAR: 2000-01 BESIX KIER DABHOL S.A. V. THE ADIT(IT)-3(1), F/19, SAI SIDDHI, OPP. GULMARG SOCIETY SCINDIA HOU SE, N.M.ROAD, GHARAI, CHEMBUR NAKA, CHEMBUR, BALLARD PIER, MUMBA I-38. MUMBAI-71 PA NO.AAACB 6191 J (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI DHAMESH BATNA/KRISHNA KANAKIA REVENUE BY : SHRI S.S.RANA/S.M./KESHKAMAT O R D E R PER R.S.SYAL, AM THIS APPEAL BY THE ASSESSEE ARISES OUT OF THE ORDE R PASSED BY THE CIT(A)-XXXIII ON 28.11.2008 IN RELATION TO ASSESSMENT YEAR 2000 -01. 2. THE ONLY GRIEVANCE RAISED IN THIS APPEAL IS AGAI NST THE DISMISSAL OF THE APPEAL BY LD CIT (A) INSTEAD OF ANNULLING THE ASSESSMENT. 3. SHORN OF UNNECESSARY DETAILS, IT IS NOTED THAT T HE ORIGINAL ASSESSMENT ORDER PASSED U/S.143(3) WAS HELD BY THE DIRECTOR OF INCOME TAX ( INTERNATIONAL TAXATION) TO BE ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE RE VENUE. ORDER U/S.263 WAS PASSED AND PURSUANT TO THAT, THE ASSESSING OFFICER FRAMED THE INSTANT ASSESSMENT. IN THE MEANWHILE, THE ORDER U/S.263 CAME UP BEFORE THE TRIBUNAL AND T HE SAME WAS SET ASIDE. IN APPEAL AGAINST THE PRESENT ASSESSMENT, THE ASSESSEE STATED THIS FACT BEFORE LD CIT (A) THAT THE ITA NO.1088/M/09 M/S. BESIXKIER DABHOL SA 2 ORDER U/S.263 HAS BEEN SET ASIDE. THE LD CIT (A) N OTED THIS FACT AND OBSERVED IN THE LAST PARA OF THE IMPUGNED ORDER AS UNDER:- DURING THE APPELLATE PROCEEDINGS THE APPELLANT SUBM ITTED THAT THE HONBLE ITAT ALLOWED THE APPEAL OF THE APPELLANT WH ICH WAS FILED AGAINST THE ORDER PASSED U/S.263 OF THE I.T.ACT BY THE DIT (INTERNATIONAL TAXATION). THE APPELLANT SUBMITTED THAT IN VIEW OF THE ABOVE, THE APPEAL FILED BY THE APPELLANT DOES NOT SURVIVE. I AGREE W ITH THE APPELLANT. IN VIEW OF THIS APPEAL IS TREATED AS DISMISSED. IT IS HOW HE DISMISSED THE APPEAL OF THE ASSESSEE. 4. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND PERU SING THE RELEVANT MATERIAL ON RECORD, IT IS OBSERVED THAT LD CIT (A) HAS TAKEN NOTE OF THE FACT THAT THE ORDER PASSED U/S.263 HAS BEEN SET ASIDE BY THE TRIBUNAL. IN SUCH A CASE, INSTEAD OF DISMISSING THE APPEAL, THE ASSESSMENT SO FRAMED PUR SUANT TO THE ORDER U/S.263 SHOULD HAVE BEEN ANNULLED. NO ASSESSMENT CAN STAND WHEN THE VERY BASIS FOR THE SAME, BEING THE ORDER U/S 263 DOES NOT SURVIVE. WE , THEREFORE, MODIFY THE FINDING GIVEN BY LD CIT (A) AND HOLD THAT IN VIEW O F SETTING ASIDE OF THE ORDER U/S.263 BY THE TRIBUNAL, THE PRESENT PROCEEDINGS FL OWING OUT OF SUCH ORDER DO NOT HAVE LEGS TO STAND. RESULTANTLY, THE ASSESSMEN T SO MADE PURSUANT TO THE ORDER U/S.263 IS SET ASIDE. 5. IN THE RESULT, APPEAL IS ALLOWED. PRONOUNCED ON 9 TH DECEMBER, 2009 SD/ SD/- (R.S.PADVEKAR) ( R.S. SYAL) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED, 9 TH DECEMBER , 2009. COPY TO:- 1) THE APPELLANT. 2) THE RESPONDENT. 3) THE CIT (A) CONCERNED. 4) THE CIT CONCERNED. 5) THE DEPARTMENTAL REPRESENTATIVE, B BENCH, I.T.A.T., MUMBAI. PARIDA BY ORDER //TRUE COPY// ASST. REGISTRAR, I.T.A.T., MUMBAI. ITA NO.1088/M/09 M/S. BESIXKIER DABHOL SA 3 DATE INITIALS SR.P.S 1. DRAFT DICTATED ON 9.12. 2009 2. DRAFT PLACED BEFORE AUTHOR 9..12.2009 3. DRAFT PROPOSED & PLACED BEFORE THE JM/AM SECOND MEMBER 4. DRAFT DISCUSSED/APPROVED BY JM/AM SECOND MEMBER 5. APPROVED DRAFT COMES TO THE SR.PS SR .PS 6. KEPT FOR PRONOUNCEMENT ON SR.PS 7. FILE SENT TO THE BENCH CLERK SR. P S 8. DATE ON WHICH FILE GOES TO THE H.C. 9. DATE OF DISPATCH OF ORDER *