ACIT 17(3), MUMBAI V. ABDUL RASOOL VIRJI, MUMBAI

ITA 2793/MUM/2011

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 8226 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-08-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 07-05-2012
• Assessment Year: 2004-2005
• Appeal Filed On: 08-04-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 143(3)

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI . . , . . , . . BEFORE SHRI P.M.JAGTAP, AM & SHRI AMIT SHUKLA, JM ./ ITA NO.2793/MUM/2011 ( / ASSESSMENT YEAR :2004-2005) THE ACIT, 17(3), MUMBAI VS. ABDUL RASOOL VIRJI, 25/35, SITARAM BLDG. G 3 RD , PEERKHAN STREET, NAGPADA, MUMBAI-400 008. ./ ./PAN NO.AABPV 2219 H ( /APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : MR. MOHIT JAIN / RESPONDENT BY : MR. DEEPAK TRALSHAWALA / DATE OF HEARING : 31 ST JULY, 2012 / DATE OF PRONOUNCEMENT : 3 RD AUGUST, 2012 / O R D E R PER AMIT SHUKLA (J.M.) : THIS APPEAL HAS BEEN FILED BY THE DEPARTMENT AGAINST THE ORDER DATED 24-1-2011, PASSED BY THE CIT(A )-29, MUMBAI FOR THE QUANTUM OF ASSESSMENT DETERMINED UNDER SECTION 143(3) FOR THE ASSESSMENT YEAR 2004-2005 ON THE FOLLOWING GROUNDS OF APPEAL :- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD CIT(A) ERRED IN ALLOWING INTEREST OF ` .48,59,456/- AWARDED BY THE COURT ON THE BASIS OF ITATS DECISION CANCELLING THE ORDER U/S.263. ITA NO : 2793/M/11 2 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD CIT(A) ERRED IN FOLLOWING THE DECISION OF ITAT WHICH IS BASED ON INCORRECT FACTS OF THE CASE THOUGH THE ORDER OF AO IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE. 3. THE APPELLANT PRAYS THAT THE ORDER OF THE CIT(A) ON THE ABOVE GROUNDS BE REVERSED AND THAT OF THE ASSESSING OFFICER BE RESTORED. 2 . THIS APPEAL IS ARISING OUT OF CONSEQUENTIAL ORDER PASSED UNDER SECTION 143(3) R.W.S. 263 IN PURS UANCE OF THE ORDER PASSED UNDER SECTION 263, DATED 6-3-2009 BY CIT, WHEREBY THE ORIGINAL ASSESSMENT ORDER WAS SET ASIDE BEING ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE, FOR MAKING FRESH ASSESSMENT. 3. IT HAS BEEN POINTED OUT BY THE L EARNED SENIOR COUNSEL THAT THE ORDER PASSED BY THE CIT UNDER SE CTION 263, DATED 6-3-2009, HAS NOW BEEN SET ASIDE BY THE HONBLE ITAT VIDE ORDER DATED 31-12-2010, PASSED IN ITA NO.2142/MUM/2009. EV EN THE CIT(A) HAS GIVEN THIS SPECIFIC FINDING IN PARA 4 & 5 OF THE APPELLATE ORDER. LEARNED SENIOR DR FAIRLY AGREED TO THESE FACTS. 4 . AFTER CAREFULLY CONSIDERING MATE RIAL ON RECORD, WE FIND THAT THE TRIBUNAL HAS CANCELLED THE ORDER PASSED UNDER SECTION 263 BY THE CIT AND, THEREFORE, THE CONSEQUENTIAL ORDER PASSED UNDER SECTION 143(3) R.W.S. 263 DOES NOT SURVIVE AS THE SAME HAS BECOME INFRUCTUOUS. ITA NO : 2793/M/11 3 ACCORDINGLY, THERE IS NO SUBST ANCE IN THE APPEAL FILED BY THE DEPARTMENT AND THE SAME IS DISMISSED. 6 . IN THE RESULT, THE APPEAL OF THE DEPARTMENT IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 3 RD AUGUST, 2012 . 3 RD AUGUST, 2012 SD/- SD/- ( . . ) ( ) ( P.M.JAGTAP) ( AMIT SHUKLA) /ACCOUNTANT MEMBER /JUDICIAL MEMBER MUMBAI; DATED 3 RD / AUGUST/2012 . . / PKM. . ./PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A)- 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI