DCIT, Cir-9(1)Kol., Kolkata V. M/s Apeejay Shipping Limited, Kolkata

ITA 328/KOL/2019

• Counselvise Citation: [2020] 112 COUNSELVISE.COM (IT) 0174 (ITAT-KOLKATA)
• Duration Of Justice: 10 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-01-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 22-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUPRIYO PAL
• Assessee Lawyers: MANISH TIWARI
• Section: 143(3); 115JB; 263

Judgement Text

1 ITA NO. 328/KOL/2019 APEEJAY SHIPPING LTD., AY-2010 -11 , C , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: KOL KATA ( ) . . , . ' # $% % , '( ) [BEFORE SHRI A. T. VARKEY, JM & DR. A. L. SAINI, A M] I.T.A. NO. 328/KOL/2019 ASSESSMENT YEAR: 2010-11 DEPUTY COMMISSIONER OF INCOME- TAX, CIRCLE-9(1), KOLKATA. VS. M/S. APEEJAY SHIPPING LIMITED (PAN: AADCS7605P) APPELLANT RESPONDENT DATE OF HEARING 16.12.2019 DATE OF PRONOUNCEMENT 01.01.2020 FOR THE APPELLANT SHRI SUPRIYO PAL, JCIT, SR. DR FOR THE RESPONDENT SHRI MANISH TIWARI, FCA ORDER PER SHRI A. T. VARKEY, JM THIS A PPEAL PREFERRED BY THE REVENUE IS AGAINST THE ORDER OF LD. CIT(A)-3, KOLKATA DATED 19-12-2018 FOR ASSESSMENT YEARS 2010- 11. THE REVENUE HAS RAISED THE FOLLOWING SOLE GROUND OF APPEAL: 1. WHETHER THE LD. CIT(A) IS JUSTIFIED IN FACTS AN D IN LAW TO DECLARE THE IMPUGNED REVISION ASSESSMENT ORDER OF THE ASSESSING OFFICER DATED 29.01.2016 AS NON-EST AND IS JUSTIFIED ALLOWING THE APPEAL OF ASSESSEE AGAINST O RDER U/S. 263 IN TECHNICAL GROUND WITHOUT JUSTIFYING THE LEGISLATIVE INTENTION OF SEC . 115JB & 115JAA? 2. BRIEFLY STATED FACTS ARE THAT THE ASSESSEE IS MA INLY ENGAGED IN THE BUSINESS OF OPERATING OF SHIPS FOR CARRIAGE OF GOODS. THE ASSE SSMENT WAS COMPLETED U/S. 143(3) OF THE ACT ON 28.03.2012 DETERMINING TOTAL I NCOME AT RS.28,09,97,170/- AGAINST THE DECLARED INCOME OF ASSESSEE RS.27,96,82 ,040/-. LATER THE LD. CIT INITIATED THE PROCEEDING U/S. 263 OF THE ACT FOR AY S. 2007-08 TO 2010-11 AND PASSED ORDER DATED 30.03.2015 WITH A DIRECTION TO R E-COMPUTE THE MAT CREDIT FOR THOSE YEARS AND ALSO TO RECONSIDER THE EFFECT OF CR EDIT OF TAX U/S. 115JAA OF THE ACT 2 ITA NO. 328/KOL/2019 APEEJAY SHIPPING LTD., AY-2010 -11 FOR THE SUBSEQUENT YEARS I.E. AYS. 2008-09, 2009-10 AND 2010-11, SINCE ACCORDING TO HIM, THE MAT CREDIT FOR AY 2007-08 WILL HAVE CAS CADING EFFECT ON THE TAX PAYABLE /REFUNDABLE FOR SUBSEQUENT ASSESSMENT YEARS . AGAINST THIS ORDER OF LD. CIT U/S 263 DATED 30.03.215, THE ASSESSEE FILED AN APPE AL BEFORE THIS TRIBUNAL WHICH WAS DISPOSED OF BY THE TRIBUNAL IN FAVOUR OF THE AS SESSEE IN ITA NOS 781- 784/KOL/2015 DATED 06/.04.2016 AND THE TRIBUNAL WAS PLEASED TO CANCEL THE LD. CITS ORDER U/S 263 OF THE ACT DATED 30.03.2015. TH E LD. CIT(A) WHILE PASSING THE IMPUGNED ORDER HAD TAKEN NOTE THAT THE AOS ORDER S TEMMED FROM THE ORDER OF LD. CIT PASSED U/S 263 OF THE ACT DATED 30.03.2015 WHIC H HAS BEEN ALREADY CANCELLED BY THE TRIBUNAL, WAS PLEASED TO CANCEL THE REASSESS MENT ORDER PASSED BY AO AND ALLOWED THE ASSESSEES APPEAL. AGGRIEVED, THE REVE NUE IS BEFORE US. 3. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH THE FACTS AND CIRCUMSTANCES OF THE CASE. AT THE OUTSET ITSELF, T HE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE LD. CIT(A) HAS GIVEN RELIEF TO T HE ASSESSEE TAKING NOTE THAT AOS REASSESSMENT ORDER DATED 29.01.2016 WAS PASSED WHIL E GIVING EFFECT TO THE ORDER OF LD. CIT-3 PASSED U/S 263 OF THE ACT; AND WE NOTE TH AT THE TRIBUNAL HAS QUASHED THE ORDER OF LD. CIT-3 PASSED U/S 263; AND, THEREFORE, THE LD. LD CIT(A) HAS BEEN PLEASED TO QUASH THE SAME. WE NOTE THAT THE FOUNDA TION OF AOS REASSESSMENT ORDER DATED 29.01.2016, WAS THE ORDER OF LD. CIT-3 PASSED U/S 263 OF THE ACT DATED 30.03.2015, WHICH IS NO LONGER EXISTING IN THE EYES OF LAW, WHEN THE SAME HAS BEEN CANCELLED BY THIS TRIBUNAL BY ORDER DATED 06.04.201 6. SO WHEN THE FOUNDATION GOES, ALL SUBSEQUENT ACTION FALLS / GOES. THIS IS BASED ON LEGAL MAXIM SUBLATO FUNDAMENTO CREDIT OPUS MEANING, IN CASE A FOUNDATI ON IS REMOVED, SUPER- STRUCTURE FALLS. IN THE CASE OF BADRINATH VS GOVT. OF TAMIL NADU AIR 2000 SC 3243 HONBLE SUPREME COURT HELD THAT ONCE THE BASIS OF A PROCEEDING IS GONE, ALL CONSEQUENTIAL ORDERS AND ACTS WOULD FALL ON THE GRO UND AUTOMATICALLY WHICH PRINCIPLE IS APPLICABLE TO JUDICIAL / QUASI-JUDICIA L PROCEEDINGS. SINCE THE LD. CITS ORDER U/S 263 OF THE ACT HAS BEEN QUASHED BY THE TR IBUNAL VIDE ORDER DATED 3 ITA NO. 328/KOL/2019 APEEJAY SHIPPING LTD., AY-2010 -11 06.04.2016, THE AO GIVING APPEAL EFFECT ORDER TO TH E SECTION 263 ORDER OF LD CIT IS ALSO NULL IN THE EYES OF LAW. SO, WE CONFIRM THE IM PUGNED ORDER OF LD CIT(A). 4. IN THE RESULT, THE APPEAL OF REVENUE IS DISMISSE D. ORDER IS PRONOUNCED IN THE OPEN COURT ON 1 ST JANUARY, 2020. SD/- SD/- (DR. A. L. SAINI) (ABY. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED :1ST JANUARY, 2020 JD.(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1. APPELLANT DCIT, CIRCLE-9(1), KOLKATA. 2 RESPONDENT M/S. APEEJAY SHIPPING LIMITED, APEEJ AY HOUSE, 15 PARK STREET, KOLKATA-700 016. 3. 4. 5. CIT(A)-3, KOLKATA (SENT THROUGH E-MAIL) CIT- , KOLKATA. DR, ITAT, KOLKATA. (SENT THROUGH E-MAIL) / TRUE COPY, BY ORDER, ASSISTANT REGISTRAR