Chirag Land Promoters Pvt. Ltd., Pune V. Deputy Commissioner of Income-tax ,

ITA 1918/PUN/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 76056 (ITAT-PUNE)
• Duration Of Justice: 2 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-01-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 30-10-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K MODI
• Assessee Lawyers: SANJAY N KAP ADIA
• Keywords: Business income
• Section: 143(3); 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCHES B, PUNE BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR, JUDICIAL MEMBER ITA NO.993/PN/2012 (ASSESSMENT YEAR : 2007-08) CHIRAG LAND PROMOTERS PVT. LTD., A-3, 5 TH FLOOR, THE FIFTH AVENUE, DHOLE PATIL ROAD, PUNE 411 001. PAN : AACCC6056D . APPELLANT VS. INCOME TAX OFFICER, WARD 1(1), PUNE. . RESPONDENT ITA NO.1918/PN/2013 (ASSESSMENT YEAR : 2007-08) CHIRAG LAND PROMOTERS PVT. LTD., A-3, 5 TH FLOOR, THE FIFTH AVENUE, DHOLE PATIL ROAD, PUNE 411 001. PAN : AACCC6056D . APPELLANT VS. DY. COMMISSIONER OF INCOME TAX, CIRCLE 1(1), PUNE. . RESPONDENT ASSESSEE BY : MR. SANJAY N. KAPADIA DEPARTMENT BY : MR. A. K. MODI DATE OF HEARING : 15-01-2014 DATE OF PRONOUNCEMENT : 27-01-2014 ORDER PER G. S. PANNU, AM BOTH THE CAPTIONED APPEALS RELATE TO THE SAME ASSE SSEE FOR ASSESSMENT YEAR 2007-08, THEREFORE THEY HAVE BEEN C LUBBED AND HEARD TOGETHER AND A CONSOLIDATED ORDER IS BEING PASSED F OR THE SAKE OF CONVENIENCE AND BREVITY. 2. ITA NO.993/PN/2012 IS AN APPEAL PREFERRED BY THE ASSESSEE WHICH IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF I NCOME TAXI, PUNE (IN SHORT THE COMMISSIONER) DATED 14.03.2012 PASS ED U/S 263 OF THE INCOME ITA NO.993/PN/2012 ITA NO.1918/PN/2013 TAX ACT, 1961 (IN SHORT THE ACT) HOLDING THE ASSE SSMENT ORDER PASSED BY THE ASSESSING OFFICER U/S 143(3) OF THE ACT DATED 31.07 .2009 FOR ASSESSMENT YEAR 2007-08 AS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE WITHIN THE MEANING OF SECTION 263 OF ACT. 3. IN BRIEF, THE FACTS RELEVANT TO THE DISPUTE RAIS ED BY THE ASSESSEE CAN BE SUMMARIZED AS FOLLOWS. THE APPELLANT IS A COMPANY INCORPORATED UNDER THE PROVISIONS OF THE COMPANIES ACT, 1956 WHICH IS ENGA GED IN THE BUSINESS OF LAND DEVELOPMENT. FOR THE ASSESSMENT YEAR 2007-08, IT FILED A RETURN OF INCOME ON 30.10.2007 DECLARING TOTAL INCOME OF RS.N IL WHICH WAS SUBJECT TO SCRUTINY ASSESSMENT U/S 143(3) OF THE ACT. THE ASS ESSING OFFICER ACCEPTED THE RETURNED INCOME IN AN ASSESSMENT YEAR FINALIZED U/S 143(3) OF THE ACT DATED 31.07.2009. 4. SUBSEQUENTLY, THE COMMISSIONER INVOKED HIS REVIS IONARY POWERS CONTAINED IN SECTION 263 OF THE ACT ON NOTICING THA T THE ASSESSMENT ORDER WAS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INT ERESTS OF THE REVENUE ON THE GROUND THAT THE ASSESSING OFFICER HAD FAILED TO TAK E INTO CONSIDERATION A DEVELOPMENT AGREEMENT DATED 06.04.2006 EXECUTED BY THE ASSESSEE FOR LAND AGAINST A TOTAL CONSIDERATION OF RS.17.50 CRORES WH EREBY ASSESSEE WAS LIABLE TO BE TAXED IN THE YEAR UNDER CONSIDERATION ON THE ENTIRE SALE CONSIDERATION. 5. ON BEING SHOW-CAUSED, ASSESSEE RESISTED THE ACTI ON OF THE COMMISSIONER AND MADE DETAILED SUBMISSIONS IN THAT REGARD. THE COMMISSIONER CONSIDERED THE SUBMISSIONS PUT-FORTH B Y THE ASSESSEE AND CAME TO CONCLUDE THAT ENTERING OF A DEVELOPMENT AGR EEMENT FOR LAND WITH M/S. KOLTE PATIL DEVELOPERS LTD. REFLECTED A TAXABLE EVE NT DURING THE YEAR UNDER CONSIDERATION, WHICH THE ASSESSING OFFICER HAD FAIL ED TO CONSIDER. THEREFORE, ACCORDING TO HIM, THE ASSESSMENT ORDER DATED 31.07. 2009 (SUPRA) WAS ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF THE R EVENUE AND THE SAME WAS ITA NO.993/PN/2012 ITA NO.1918/PN/2013 CANCELLED BY HIM. FURTHER, HE DIRECTED THE ASSESSI NG OFFICER TO BRING TO TAX THE ENTIRE SALE CONSIDERATION OF RS.17.50 CRORES IN THE ASSESSMENT YEAR UNDER CONSIDERATION. AGAINST SUCH ORDER OF THE COMMISSIO NER, ASSESSEE IS IN APPEAL BEFORE US. 6. BEFORE US, THE SUM AND SUBSTANCE OF THE SUBMISSI ONS PUT-FORTH BY THE ASSESSEE ARE TO THE EFFECT THAT THE FACTS AND CIRCU MSTANCES OF THE TRANSACTION WITH M/S. KOLTE PATIL DEVELOPERS LTD. HAVE NOT BEEN APPROPRIATELY APPRECIATED BY THE COMMISSIONER; AND, THAT THE COMMISSIONER ERR ED IN DIRECTING THE ASSESSING OFFICER TO BRING TO TAX THE ENTIRE SALE C ONSIDERATION DURING THE YEAR UNDER CONSIDERATION INASMUCH AS THE ASSESSEE HAD DU LY OFFERED THE SAID CONSIDERATION TO TAX FOR ASSESSMENT YEAR 2011-12, W HICH WAS BASED ON EXECUTION OF FINAL SETTLEMENT AGREEMENT ON 05.02.20 11 WITH M/S. KOLTE PATIL DEVELOPERS LTD. . IT IS, FURTHER, POINTED OUT THAT THE COMMISSIONER HAS ERRED IN DIRECTING THE ASSESSING OFFICER TO BRING THE ENTIRE SALE CONSIDERATION TO TAX IN THE INSTANT YEAR AS CAPITAL GAINS WHEREAS THE IMP UGNED TRANSACTION IS LIABLE TO BE TAXED AS BUSINESS INCOME, AS THE ASSESSEE COMP ANY IS INTER-ALIA , ENGAGED IN THE BUSINESS OF LAND DEVELOPMENT. 7. ON THE OTHER HAND, THE LEARNED CIT(DR) APPEARING FOR THE REVENUE HAS SUPPORTED THE ORDER OF THE COMMISSIONER BY POINTING OUT THAT THE ASSESSING OFFICER HAD FAILED TO CONSIDER THE TAX IMPLICATIONS OF THE DEVELOPMENT AGREEMENT DATED 06.04.2006 WITH M/S. KOLTE PATIL DE VELOPERS LTD. WHICH WAS A JUSTIFIABLE REASON FOR INVOKING OF SECTION 263 OF THE ACT. 8. BEFORE WE PROCEED TO ADJUDICATE THE RIVAL CONTEN TIONS, IT WOULD BE APPROPRIATE TO REFER TO THE FOLLOWING PERTINENT FAC TS, AS EMERGING FROM THE MATERIAL ON RECORD. THE ASSESSEE HAD ENTERED INTO A DEVELOPMENT AGREEMENT DATED 06.04.2006 WHICH WAS EXECUTED ON 03.05.2006 W ITH M/S. KOLTE PATIL DEVELOPERS LTD. FOR A LAND ADMEASURING 50000 SQ.MTS . FOR A TOTAL CONSIDERATION ITA NO.993/PN/2012 ITA NO.1918/PN/2013 OF RS.17.50 CRORES AND ASSESSEE RECEIVED RS.12.60 C RORES AT THE TIME OF THE AGREEMENT. AS PER THE COMMISSIONER, ON THE BASIS O F SUCH AGREEMENT, THE PURCHASER HAD OBTAINED POSSESSION OF THE LAND AND T HEREFORE CAPITAL GAINS ON SUCH TRANSACTION ACCRUED AS INCOME IN THE HANDS OF THE ASSESSEE FOR THE YEAR UNDER CONSIDERATION. HOWEVER, THE ASSESSEE POINTED OUT BEFORE THE COMMISSIONER THAT DURING THE YEAR UNDER CONSIDERATI ON ASSESSEE HAD ENTERED INTO THE SAID AGREEMENT TO SALE OF DEVELOPMENT RI GHTS OF LAND, SUBJECT TO FULFILLMENT OF CERTAIN TERMS AND CONDITIONS AND THE REFORE IT COULD NOT BE CONSIDERED AS A SALE EFFECTED DURING THE YEAR UNDER CONSIDERATION. IT WAS POINTED OUT THAT WITHOUT COMPLYING WITH THE TERMS A ND CONDITIONS MENTIONED IN THE AGREEMENT TO SALE, THE SIGNIFICANT RISK AND R EWARDS RELATING TO THE SAID DEVELOPMENT RIGHTS COULD NOT BE TRANSFERRED TO THE PURCHASER AND SINCE THE TERMS AND CONDITIONS WERE PENDING FULFILLMENT DURIN G THE YEAR UNDER CONSIDERATION, THE SAID EVENT DOES NOT RESULT IN AN Y INCOME EXIGIBLE TO TAX IN THE INSTANT ASSESSMENT YEAR. IN THE RETURN OF INCO ME FILED ASSESSEE HAD SHOWN THE RECEIPT OF RS.12.60 CRORES DURING THE YEA R UNDER CONSIDERATION AS ADVANCE FROM CUSTOMER. WITH REGARD TO THE HANDIN G-OVER OF POSSESSION, ASSESSEE POINTED OUT THAT NO POSSESSION, SO AS TO G IVE A RIGHT TO THE BUYER TO START DEVELOPMENT OF LAND WAS GIVEN BY VIRTUE OF TH E AGREEMENT DATED 06.04.2006, BECAUSE CERTAIN TERMS AND CONDITIONS WE RE TO BE FULFILLED BY THE ASSESSEE QUA THE TITLE CLEARANCE, RESOLUTION OF LAN D DISPUTE, GETTING THE PLANS PASSED BY PUNE MUNICIPAL CORPORATION (PMC), ETC. AN D THUS THE AGREEMENT MERELY PROVIDED A BARE LICENSE TO THE BUYER AND IT WAS ONLY IN THE SUBSEQUENT YEAR THAT POSSESSION COULD BE SAID TO HAVE BEEN GIV EN TO THE BUYER. IN THIS CONTEXT, IT WAS POINTED OUT THAT THE POSSESSION AS DE-JURE WAS CONFIRMED ONLY ON THE DATE OF SANCTION OF BUILDINGS PLAN BY THE PM C I.E. 24.08.2010. IT WAS THUS POINTED OUT THAT THE RECEIPT OF CONSIDERATION OF RS.12.60 CRORES DURING THE YEAR WAS ONLY CONDITIONAL. IN-FACT, ASSESSEE FURNIS HED BEFORE THE COMMISSIONER A FINAL SETTLEMENT AGREEMENT DATED 05. 02.2011 ENTERED WITH M/S. KOLTE PATIL DEVELOPERS LTD. WHEREBY THE ENTIRE TRANSACTION WAS COMPLETED ITA NO.993/PN/2012 ITA NO.1918/PN/2013 AND THE TOTAL CONSIDERATION WAS ALSO REVISED DOWN T O RS.13.25 CRORES AS AGAINST RS. 17.50 CRORES CONSIDERED IN THE AGREEME NT OF SALE DATED 06.04.2006. ASSESSEE SUBMITTED THAT POSSESSION OF THE SAID DEVELOPMENT RIGHTS WAS ACCORDINGLY FINALLY TRANSFERRED IN ASSES SMENT YEAR 2011-12 ON EXECUTION OF THE FINAL SETTLEMENT AGREEMENT DATED 0 5.02.2011 AFTER GETTING THE SANCTION OF BUILDINGS PLAN BY PMC AND THEREFORE THE PROFIT ARISING ON THE SALE OF DEVELOPMENT RIGHTS WAS DULY RECOGNIZED BY THE AS SESSEE IN THE PROFIT AND LOSS ACCOUNT FOR ASSESSMENT YEAR 2011-12 AND THAT T HE SAME WAS NOT LIABLE TO CONSIDERED FOR TAXATION IN THE INSTANT ASSESSMEN T YEAR. 9. ANOTHER POINT RAISED BY THE ASSESSEE BEFORE THE COMMISSIONER WAS THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS BE FORE THE ASSESSING OFFICER, ASSESSEE HAD SUBMITTED DETAILS OF ADVANCES FROM CUSTOMERS WHICH INCLUDED THE SUM OF RS.12.60 CRORES RECEIVED FROM M /S. KOLTE PATIL DEVELOPERS LTD. AND THEREFORE IT CAN BE SAID ON THE BASIS OF S UCH EXPLANATION FURNISHED BY THE ASSESSEE, THAT ASSESSING OFFICER HAD APPLIED HI S MIND ON THE SAID TRANSACTION BEFORE PASSING THE ORDER U/S 143(3) OF THE ACT DATED 31.07.2009. THIS PLEA OF THE ASSESSEE HAS BEEN REJECTED BY THE COMMISSIONER ON THE GROUND THAT THE ASSESSMENT ORDER WAS MADE WITHOUT A PPLICATION OF MIND. ON THIS ASPECT, IN OUR VIEW, THE STAND OF THE COMMISSI ONER CANNOT BE FAULTED AND HE WAS JUSTIFIED IN INVOKING REVISIONARY JURISDICTI ON CONFERRED ON HIM U/S 263 OF THE ACT. OSTENSIBLY, THERE IS NO MATERIAL ON RECOR D OR IN THE ASSESSMENT ORDER ITSELF, WHICH MAY POINT OUT THAT THE ASSESSING OFFI CER HAD APPLIED HIS MIND WITH RESPECT TO THE TRANSACTION ENTERED WITH M/S. KOLTE PATIL DEVELOPERS LTD. DURING THE YEAR UNDER CONSIDERATION. IN-FACT, WE FIND THA T BEFORE THE COMMISSIONER AND EVEN BEFORE US, NO SUCH MATERIAL HAS BEEN REFER RED TO ON BEHALF OF THE ASSESSEE, WHICH CAN DEMONSTRATE ANY APPLICATION OF MIND BY THE ASSESSING OFFICER TO THE TRANSACTION IN QUESTION. THEREFORE, FACTUALLY SPEAKING, THE RETURN OF INCOME ON THE ASPECT OF THE TRANSACTION WITH M/S . KOLTE PATIL DEVELOPERS LTD. HAS BEEN ACCEPTED BY THE ASSESSING OFFICER WIT HOUT APPLICATION OF MIND, ITA NO.993/PN/2012 ITA NO.1918/PN/2013 AND, THUS, IN OUR VIEW, SUCH AN ASSESSMENT ORDER HA S BEEN CORRECTLY TREATED BY THE COMMISSIONER AS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE WITHIN THE MEANING OF SECTION 263 OF THE ACT. THEREFORE, IN SO FAR AS INVOKING OF SECTION 263 OF THE ACT BY THE CO MMISSIONER IS CONCERNED, THE SAME IS HEREBY AFFIRMED. 10. NOW, THE ONLY BONE OF CONTENTION LEFT FOR DETER MINATION IS THE SUBSEQUENT DIRECTION OF THE COMMISSIONER TO THE ASS ESSING OFFICER TO BRING TO TAX THE ENTIRE SALE CONSIDERATION IN THE INSTANT AS SESSMENT YEAR. ON THIS ASPECT, WE FIND THAT THE COMMISSIONER HAS CONCLUDED THAT THE AGREEMENT DATED 06.04.2006 RESULTED IN RECEIPT OF PART CONSID ERATION BY THE ASSESSEE, OBTAINING OF POSSESSION BY THE PURCHASER AND THEREF ORE, ACCORDING TO HIM, IT WAS LIABLE TO BE TAXED IN THE YEAR UNDER CONSIDERAT ION. FURTHER, ACCORDING TO HIM, THE ENTIRE STATED CONSIDERATION OF RS.17.50 CR ORES IS LIABLE TO BE TAXED. 11. WE HAVE CAREFULLY PERUSED THE ORDER OF THE COMM ISSIONER IN THIS REGARD. IN OUR CONSIDERED OPINION, THE CONCLUSION OF THE COMMISSIONER (I) THAT THE TRANSACTION WAS LIABLE TO BE TAXED IN THIS YEAR ; AND, (II) THAT THE ENTIRE SALE CONSIDERATION IS LIABLE TO BE TAXED, HAVE BEEN REAC HED ON INADEQUATE CONSIDERATIONS. FIRSTLY, THE ASSESSEE CONTESTED TH AT THE SAID TRANSACTION COULD NOT BE TAXED AS CAPITAL GAINS INASMUCH AS ASSESSE E WAS IN THE BUSINESS OF LAND DEVELOPMENT AND THEREFORE, IT WAS TO BE TAXED AS BUSINESS INCOME. SECONDLY, ASSESSEE POINTED OUT THAT THE PART CONSID ERATION RECEIVED AS PER AGREEMENT DATED 06.04.2006 WAS CONDITIONAL AND EVEN THE HANDING-OVER OF POSSESSION WAS NOT DE-JURE AND REFERENCE WAS MADE TO THE TERMS AND CONDITIONS OF THE AGREEMENT IN THIS REGARD. THIRDL Y, ASSESSEE ALSO POINTED OUT THAT SUBSEQUENT FINAL AGREEMENT ENTERED ON 05.02.20 11 RECOGNIZED THE GIVING OF POSSESSION AFTER FULFILLMENT OF CERTAIN CONDITIO NS, WHICH WERE OBLIGATIONS OF THE ASSESSEE; AND, FURTHER THAT INCOME FROM SUCH TR ANSACTION WAS OFFERED BY THE ASSESSEE IN ASSESSMENT YEAR 2011-12. ITA NO.993/PN/2012 ITA NO.1918/PN/2013 12. IN OUR CONSIDERED OPINION, THE COMMISSIONER HAS NOT APPROPRIATELY CONSIDERED THE SUBMISSIONS PUT-FORTH BY THE ASSESSE E AS TO DETERMINE THE CORRECT (I) YEAR OF TAXABILITY; AND, (II) HEAD OF I NCOME UNDER WHICH THE IMPUGNED TRANSACTION IS LIABLE TO BE TAXED. WE MAY HASTEN TO ADD HERE THAT WE ARE NOT SAYING THAT THE CONCLUSION REACHED BY TH E COMMISSIONER IS WRONG. WHAT WE ARE ONLY TRYING TO POINT OUT IS THAT THE EN TIRE FACTUAL AND LEGAL ASPECT OF THE MATTER WAS REQUIRED TO BE CONSIDERED BY THE COMMISSIONER BEFORE COMING TO ANY CONCLUSION. SUCH AN APPROACH BY THE COMMISSIONER IS CONSPICUOUS BY ITS ABSENCE. THEREFORE, IN OUR CONS IDERED OPINION, THE DIRECTION OF THE COMMISSIONER TO THE ASSESSING OFFI CER TO BRING TO TAX THE ENTIRE SALE CONSIDERATION IN THE INSTANT ASSESSMENT YEAR IS QUITE SUSCEPTIBLE IN LAW. AT THE TIME OF HEARING, ON THE AFORESAID ASPE CT, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT ASSESSEE WOULD BE SATIS FIED IF THE DIRECTION OF THE COMMISSIONER IS MODIFIED SO AS TO REQUIRE THE ASSES SING OFFICER TO CONSIDER THE ENTIRE MATERIAL AND THEREAFTER CONCLUDE AS PER LAW. THE LEARNED CIT(DR) APPEARING FOR THE REVENUE ALSO DID NOT SERIOUSLY DI SPUTE THE AFORESAID POSITION CANVASSED BY THE ASSESSEE. 13. IN THE LIGHT OF THE AFORESAID, WE DEEM IT FIT A ND PROPER TO UPHOLD THE ACTION OF THE COMMISSIONER IN SETTING-ASIDE THE ASS ESSMENT ORDER DATED 31.07.2009 AS ERRONEOUS IN SO FAR AS IT IS PREJUDIC IAL TO THE INTERESTS OF THE REVENUE WITHIN THE MEANING OF SECTION 263 OF THE AC T. HOWEVER, HIS DIRECTION TO THE ASSESSING OFFICER TO BRING TO TAX THE ENTIRE SALE CONSIDERATION IN THE INSTANT ASSESSMENT YEAR ITSELF REQUIRES TO BE MODIF IED. THE ASSESSING OFFICER IS HEREBY DIRECTED TO TAKE INTO CONSIDERATION THE E NTIRE FACTUAL AND LEGAL ASPECTS OF THE TRANSACTION INCLUDING THE FINAL SETT LEMENT AGREEMENT DATED 05.02.2011 CONCLUDED WITH M/S. KOLTE PATIL DEVELOPE RS LTD. AND THEREAFTER DECIDE THE ISSUE OF TAXABILITY OF THE TRANSACTION, INCLUDING THE HEAD OF INCOME, UNDER WHICH THE SAME IS LIABLE TO BE TAXED, IN ACCO RDANCE WITH LAW. NEEDLESS TO SAY, THE ASSESSING OFFICER SHALL ALLOW THE ASSES SEE AN APPROPRIATE ITA NO.993/PN/2012 ITA NO.1918/PN/2013 OPPORTUNITY TO PUT-FORTH MATERIAL AND SUBMISSIONS I N SUPPORT OF HIS RETURN OF INCOME AND ONLY THEREAFTER THE ASSESSING OFFICER SH ALL DECIDE THE ISSUE IN ACCORDANCE WITH LAW. 14. BEFORE PARTING, WE MAY OBSERVE THAT OUR DECISIO N TO MODIFY THE AFORESAID DIRECTION OF THE COMMISSIONER IS NO REFLE CTION ON THE MERITS OF THE ISSUE AND THE ASSESSING OFFICER SHALL BE REQUIRED T O ADJUDICATE AS PER LAW, UNINFLUENCED BY ANY OF OUR OBSERVATIONS IN THIS ORD ER. 15. IN THE RESULT, THE APPEAL OF THE ASSESSEE IN IT A NO.993/PN/2012 FOR ASSESSMENT YEAR 2007-08 IS PARTLY ALLOWED, AS ABOVE . 16. ITA NO.1918/PN/2013 IS AN APPEAL PREFERRED BY THE ASSESSEE, WHICH IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF I NCOME TAX (APPEALS)I, PUNE DATED 06.09.2013 WHICH, IN TURN, HAS ARISEN FR OM AN ORDER DATED 15.06.2012 PASSED BY THE ASSESSING OFFICER, GIVING EFFECT TO THE ORDER PASSED U/S 263 OF THE ACT BY THE COMMISSIONER OF INCOME TA X-I, PUNE, PERTAINING TO THE ASSESSMENT YEAR 2007-08. 17. AS A RESULT OF OUR ORDER IN THE APPEAL OF THE A SSESSEE CHALLENGING THE INVOKING OF SECTION 263 OF THE ACT BY THE COMMISSIO NER, THE IMPUGNED APPEAL IS RENDERED INFRUCTUOUS INASMUCH AS THE SAID APPEAL ARISES FROM THE ORDER PASSED BY THE ASSESSING OFFICER U/S 143(3) R.W.S. 2 63 OF THE ACT CONSEQUENT TO THE ORDER OF THE COMMISSIONER DATED 14.03.2012. SI NCE THE DIRECTIONS TO ASSESSING OFFICER CONTAINED IN THE ORDER OF THE COM MISSIONER DATED 14.03.2012 HAVE BEEN MODIFIED, THE ASSESSING OFFICE R IS REQUIRED TO FRAME AN ASSESSMENT AFRESH, AND ACCORDINGLY, THE IMPUGNED PR OCEEDINGS ARE RENDERED INFRUCTUOUS AND ARE ACCORDINGLY SET-ASIDE. ITA NO.993/PN/2012 ITA NO.1918/PN/2013 18. IN THE RESULT, THE APPEAL OF THE ASSESSEE IN IT A NO.1918/PN/2013 FOR ASSESSMENT YEAR 2007-08 IS ALLOWED FOR STATISTICAL PURPOSES. 19. RESULTANTLY, WHEREAS THE APPEAL OF THE ASSESSEE IN ITA NO.993/PN/2012 IS PARTLY ALLOWED THAT IN ITA NO.191 8/PN/2013 IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 27 TH JANUARY, 2014. SD/- SD/- (R.S. PADVEKAR) (G.S. PANNU) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE, DATED : 27 TH JANUARY, 2014 SUJEET COPY OF THE ORDER IS FORWARDED TO : - 1) THE ASSESSEE; 2) THE DEPARTMENT; 3) THE CIT(A)I, PUNE; 4) THE CIT-I, PUNE; 5) THE DR, B BENCH, I.T.A.T., PUNE; 6) GUARD FILE. BY ORDER //TRUE COPY// SR. PRIVATE SECRETARY I.T.A.T., PUNE