Shri Bhupendrabhai Harjibhai Khunt, Shapar (Veraval), Rajkot V. The ITO, Ward-1(1) (1), Rajkot

ITA 35/RJT/2023

• Counselvise Citation: [2024] 101 COUNSELVISE.COM (IT) 9042 (ITAT-RAJKOT)
• Duration Of Justice: 11 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-01-2024
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: DB
• Next Hearing Date: 10-01-2024
• Assessment Year: 2012-2013
• Appeal Filed On: 12-02-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHISH KUMAR PANDEY
• Section: 68; 69; 263; 144; 2; 143(3); 250; 143(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “RAJKOT” BENCH, RAJKOT [Conducted through E-Court at Ahmedabad] BEFORE Ms. SUCHITRA KAMBLE, JUDICIAL MEMBER & SHRI WASEEM AHMED, ACCOUNTANT MEMBER आयकर अपील सं./ I. T. A. No. 35/Rjt/2023 ( नधा रण वष / A ss es sment Year : 2012-13) B h up e n dr ab h a i H a rj ib ha i Kh un t Pl ot N o . 2 , Su r v e y n o. 1 8 0, V er av al ( Sh apa r ) , Op p. Mi c ro wa ve S ta ti o n , K o td a Sn a ga ni , R a jk ot , G uj a r a t, I nd ia . Pi n Co de : 3 6 0 0 20 बनाम/ V s. T h e I n c o me T ax O f f ice r, War d- 1 ( 1 ) (1 ), Ra j k o t थायी लेखा सं./जीआइआर सं./P A N/ G I R N o . : A B X P P1 4 2 1 G (अपीलाथ /Appellant) . . ( यथ / Respondent) अपीलाथ ओर से /Appellant by : Shri Samir Bhuptani, A.R. यथ क ओर से / Respondent by : Shri Ashish Kumar Pandey, Sr.D.R. स ु नवाई क तार ख / D a t e o f H e a r i ng 11/01/2024 घोषणा क तार ख /D a t e o f P ro n o u nc e me n t 24/01/2024 O R D E R PER Ms. SUCHITRA RAGHUNATH KAMBLE, J.M: This is an appeal filed by the assessee against the order of the National Faceless Appeal Centre (NFAC), Delhi in the proceeding u/s 250 of the Act vide order dated 15/12/2022 passed for the assessment year 2012-13. ITA No. 35/Rjt/2023 (Shri Bhupendrabhai Harjibhai Khunt vs. ITO) A. Y. 2012-13 - 2- 2. The grounds of the appeal raised by the assessee are as under: “1. Ld. CIT(A) erred in law as well as on facts in passing appellate order under section 250 of the Income Tax Act, 1961 adjudicating the assessment order passed under section 144 of the Income Tax Act, 1961 dated 20/03/2015, which was specifically cancelled by the Principal Commissioner of Income Tax, Rajkot vide order under section 263 of the act dated 24/03/2017 and fresh assessment order u/s 143(3) rws 263 of the act has been in pursuant thereto on 28/12/2017. In view of the order u/s 263 the original assessment order u/s 144 lost its existence and identity and got merged with the assessment order passed u/s 143(3) rws 263 of the act dated 28/12/2017 accordingly the appellate order passed on the non-existence order is invalid and void. 2. Ld. CIT(A) erred in law as well as on facts in not taking any cognizance of the order passed u/s 263 by ld. PCIT and also consequent order passed by ld. AO u/s 143(3) r.w.s. 263 of the act, which were specifically submitted by the appellant in the course of the hearing vide page no. 12 to 23 of the paper-book. 3. Ld. CIT(A) erred in law as well as on facts in confirming addition u/s. 68 of the act of Rs.95,00,000/- in respect of three parties on flimsy grounds and want of further explanation, which have been specifically accepted by ld. AO in the remand report dated 20/10/2017. Ld. CIT(A) ought to have inquired and/or given an opportunity to the appellant for submitting further documents and explanations. 4. Ld. AO erred in law as well as on facts in making addition u/s. 69 of the act of Rs. 2,18,00,000/- on account of alleged unexplained investment in purchase of residential property and ld. CIT(A) erred in law as well as on facts in confirming the addition of Rs.2,18,00,000/- by invoking section 68 of the act. 5. Ld. AO erred in law as well as on facts in proposing the addition, in remand report, on the sole presumption that the loans have been advanced out of the total income reflected in the return of income. Ld. CIT(A) erred in law as well as on facts in confirming the same. 6. All the grounds of appeal raised hereinabove are without prejudice to one another.” 3. The assessee originally filed his return of income declaring therein the total income at Rs.4,90,730/- on 28.08.2012. The case was selected for scrutiny and notice under Section 143(2) of the Act was issued on 06.08.2013 which was duly served to the assessee. The assessee did not respond to the same notice and thereafter the Assessing Officer made addition of ITA No. 35/Rjt/2023 (Shri Bhupendrabhai Harjibhai Khunt vs. ITO) A. Y. 2012-13 - 3- Rs.2,18,00,000/- as unexplained investment under Section 69 of the Act vide order dated 20.03.2015 under Section 144 of the Act. 4. Being aggrieved by the said assessment order, the assessee filed appeal before the CIT(A). The CIT(A) dismissed the assessee’s appeal. 5. The Ld. AR submitted that the Principal Commissioner of Income Tax vide order under Section 263 of the Act dated 24.03.2017 directed the Assessing Officer to pass fresh assessment order under Section 143(3) r.w.s. 263 of the Act thereby setting aside the earlier order dated 20.03.2015 passed by the Assessing Officer under Section 144 of the Act. The subsequent assessment order giving effect to the order under Section 263 r.w.s. 143(3) of the Act was passed on 28.12.2017. The Ld. AR submitted that since the original assessment order which has lost its existence and identity and got merged with the assessment order passed under Section 143(3) r.w.s. 263 of the Act dated 28.12.2017, the appellate order passed on the non-existence order is invalid and void. 6. The Ld. DR submitted that the CIT(A) has rightly dismissed the assessee’s appeal as the CIT(A) was dealing with the assessment order under Section 144 of the Act dated 20.03.2015. 7. We have heard both the parties and perused the relevant materials available on record. It is pertinent to note that since the original assessment order passed under Section 144 of the Act dated 20.03.2015 was quashed/set aside by the Principal Commissioner of Income Tax under Section 263 of the Act vide order dated 24.03.2017, which was not at all challenged by the ITA No. 35/Rjt/2023 (Shri Bhupendrabhai Harjibhai Khunt vs. ITO) A. Y. 2012-13 - 4- assessee before any Forum, attains finality. Thus, the original assessment order dated 20.03.2015 becomes void-ab-initio, which was pointed out before the CIT(A) and in fact the fresh assessment order under Section 143(3) r.w.s. 263 of the Act dated 28.12.2017 was passed by the Assessing Officer, the CIT(A) should have simply dismissed the appeal as being infructuous and should have not commented on the assessment order dated 20.03.2015. Therefore, the order passed by the CIT(A) is not justified and hence, the appeal of the assessee is allowed to the extent of Ground No.1 only. 8. As regards to Ground Nos. 2,3,4 & 5, the same are not commented at this juncture as the main ground itself has been adjudicated. 9. In the result, the appeal of the assessee is partly allowed. This Order pronounced on 24/01/2024 Sd/- Sd/- (WASEEM AHMED) (SUCHITRA RAGHUNATH KAMBLE) ACCOUNTANT MEMBER JUDICIAL MEMBER Ahmedabad; Dated 24/01/2024 S. K. SINHA True Copy आदेश क त ल प अ े षत/Copy of the Order forwarded to : 1. अपीलाथ / The Appellant 2. यथ / The Respondent. 3. संबं%धत आयकर आय ु 'त / Concerned CIT 4. आयकर आय ु 'त(अपील) / The CIT(A)- 5. *वभागीय -त-न%ध, आयकर अपील य अ%धकरण, अहमदाबाद / DR, ITAT, Ahmedabad 6. गाड3 फाईल / Guard file. By order/आदेश से, D e p u t y / A s s t t . R e g i s t r a r I T A T , R a j k o t