ITO, SRIGANGANAGAR V. Shri Gagandeep Kathuria, SRIGANGANAGAR

ITA 149/JODH/2014

• Counselvise Citation: 14923314 RSA 2014
• Duration Of Justice: 6 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-09-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 26-08-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 07-03-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JAI SINGH
• Section: 143(3); 133A; 260A; 69; 263

Judgement Text

IN THE INCOME TAX APPELALTE TRIBUNAL : JODHPUR BENCH : JODHPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K. SAINI, ACCOUNTANT MEMBER. ITA NO. 149 /JODH/2014 (A.Y. 200 7 - 08 ) ITO, WARD - 1, SRIGANGANAGAR. VS. SHRI GAGANDEEP KATHURIA, PROP. SHIVAM PROPERTY DEALER, KHICHI CHOWK, SRIGANGANAGAR. (APPELLANT) PAN NO. AMJPK 6483 A (RESPONDENT) ASSESSEE BY : SHRI SURESH OJHA. DEPARTMENT BY : SHRI JAI SINGH - D.R. DATE OF HEARING : 26 / 0 8 /201 4 . DATE OF PRONOUNCEMENT : 09 /0 9 /201 4 . O R D E R PER N.K. SAINI, A.M TH IS IS AN APPEAL BY THE DEPARTMENT AGAINST THE ORDER DATED 2 0 / 12 /2013 OF L D . CIT(A), BIKANER . THE ONLY GROUND RAISED IN THIS APPEAL READS AS UNDER : ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN ACC E PTING THE APPEAL OF THE ASSESSEE ON THE BASIS OF ORDER PASSED BY THE HON'BLE ITAT AGAINST THE ORDER U/S. 263 OF CIT , EVEN THOUGH THE DEPARTMENT HAS FILED FURTHER APPEAL U/S. 260A BEFORE THE HON'BLE HIGH COURT AGAINST THE SAID ORDER OF ITAT. 2 2 FROM A BARE READING OF THE AFORESAID GROUND OF APPEAL, IT WOULD BE CLEAR THAT THE DEPARTMENT HAS CHALLENGED THE O R DER OF THE LD. CIT(A) ONLY FOR THIS REASON THAT THE ORDER OF THE ITAT FOLLOWED BY THE LD. CIT(A) HAS BEEN CHALLENGED BEFORE THE HON'BLE HIGH COURT , H OWEVER, NOTHING IS BROUGH T ON RECORD TO SUBSTANTIATE THAT THE SAID ORDER OF THE ITAT HAS BEEN SET ASIDE OR REVERSED. ON THAT SCO RE ALONE, THIS APPEAL DESERVES TO THE DISMISSED. 3. HOWEVER, WE WANT TO DISCUSS THE FACTS OF THIS CASE WHICH IN BRIEF ARE THAT A SURVEY U/S. 133A OF THE I.T. ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT IN SHORT) WAS CONDUCTED AT THE BUSINESS PREMISES OF THE ASSESSEE AND THE ASSESSMENT WAS FRAMED U/S. 143(3) OF THE ACT ON 21/12/2009. AFTER COMPLETI ON OF THE ASSESSMENT, THE LD. CIT, BIKANER TOOK AN ACTION U/S. 263 OF THE ACT AND SET ASIDE THE ASSESSMENT ORDER VIDE O R DER DATED 31/10/2011 U/S. 263 OF THE ACT AND THE MATTER WAS RESTORED BACK TO THE ASSESSING OFFICER FOR MAKING ASSESSMENT DENOVO . THE ASSESSING OFFICER , COMPLETED THE ASSESSMENT VIDE ORDER DATED 28/09/2012 AND MADE THE ADDITIONS U/S. 69 OF THE ACT AMOUNTING TO RS. 6,60,033/ - AND U/S. 68 OF THE ACT AMOUNTING TO RS. 13,15,000/ - . ANOTHER ADDITION OF RS. 2,50,000/ - WAS MADE U/S. 69 OF THE ACT. IN MAKING THE ABOVE ADDITIONS, THE ASSESSING OFFICER FOLLOWED THE DIRECTION OF THE LD. CIT, 3 BIKANER , GIVEN AS PER THE ORDER DATED 31/10/2011 PASSED U/S. 263 OF THE ACT . 4. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) AND SUBMITTED THAT THE ORDER OF THE LD. CIT PASSED U/S. 263 OF THE ACT ON THE BASIS OF WHICH , THE ASSESSMENT HAD BEEN REOPENED AND COMPLETED , WAS SET ASIDE BY THE ITAT IN I.T.A.NO. 06/JODH/2012 VIDE ORDER DATED 13/04/2013. THEREFORE, THE ADDITION MADE BY THE ASSESSING OFFICER ON THE BASIS OF ORDER U/S. 263 OF THE ACT DESERVES TO BE DELETED. 5. THE LEARNED CIT(A), AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, OBSERVED THAT THE ORDER OF THE LD. CIT, BIKANER PASSED U/S. 263 OF THE ACT ITSELF WAS DECLARED AS ILLEGAL AND AGAINST THE LAW BY THE ITAT AND THE ORIGINAL ORDER OF THE ASSESSING OFFICER WAS HELD NEITHER ERRONEOUS N OR PREJUDICIAL TO THE INTEREST OF THE REVENUE. THEREFORE, THE ORDER PASSED BY THE ASSESSING OFFICER IN PURSUANCE OF THE ORDER U/S. 263 OF THE ACT AUTOMATICALLY BEC O ME S INFRUCTUOUS AND ILLEGAL. NOW THE DEPARTMENT IS IN APPEAL. 6 . WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. IN THE PRESENT CASE, IT IS AN ADMITTED FACT THAT THE ORDER PASSED BY THE LD. CIT , BIKANER 4 U/S. 263 OF THE ACT ( ON THE BASIS OF WHICH THE PRESENT ASSESSMENT HAD BEEN FRAMED BY THE ASSESSING OFFICER VIDE ORDER DATED 28/09/2012 ) HAS BEEN SET ASIDE BY THE ITAT VIDE ORDER DATED 30/04/2013 IN I.T.A.NO. 06/JODH/2012 . THEREFORE, THE SUBSEQUENT ORDER DATED 28/09/2012 PASSED BY THE ASSESSING OFFICER ON THE DIRECTION OF THE LD. CIT, BIKANER GIVEN IN THE ORDER DATED 31/10/2011 U/S. 263 OF THE ACT IS NOT MAINTAINABLE AND AUTOMATICALLY BECOMES INFRUCTUOUS. IN T HAT VIEW OF THE MATTER , WE DO NOT SEE ANY INFIRMITY IN THE ORDER OF THE LD. CIT(A) AND ACCORDINGLY, DO NOT SEE ANY MERIT IN THIS APPEAL OF THE DEPARTMENT. 7 . IN THE RESULT, APPEAL OF THE DEPARTMENT IS DISMISSED . ( ORDER PRONOUNCED IN THE COURT ON 09 TH S EPTEMBER , 201 4) . S D/ - SD/ - ( HARI OM MARATHA ) (N.K.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 09 TH SEPTEMBER , 201 4 . VR/ - COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE LD. CIT 4. THE CIT(A) 5. THE D.R SR. PRIVATE SECRETARY , ITAT, JODHPUR .