ITO WD 14(2)(2), MUMBAI V. LUPIN INVESTMENTS P.LTD, MUMBAI

ITA 5331/MUM/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 2556 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-07-2016
• Appeal Filed By: Department
• Bench Allotted: J
• Assessment Year: 2007-2008
• Appeal Filed On: 13-11-2015
• Court: TRIBUNAL
• Department Lawyers: ALOK JOHARI
• Keywords: Revision of order
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL J BENCH, MUMBAI BEFORE SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER AND SHRI SANJAY GARG, JUDICIAL MEMBER I.T.A. NO. 5331/M/2015 (ASSESSMENT YEAR: 2007 - 2008 ) ITO, WARD NO. 14(2)(2), R.NO.453, 4 TH FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI - 400020. / VS. LUPIN INVESTMENTS PVT LTD., 159 CST ROAD, KALLINA SANTACRUZ, MUMBAI - 098. ./ PAN : AAACL1070G ( / APPELLANT) .. ( / RESPONDENT ) / APPELLANT BY : SHRI ALOK JOHARI, CIT - DR / RESPONDENT BY : SHRI VASANTI PATEL, CIT - DR / DATE OF HEARING : 18.07.2016 / DATE OF PRONOUNCEMENT : 18.07.2016 / O R D E R PER D. KARUNAKARA RAO, AM: THIS APPEAL FILED BY THE REVENUE ON 13.11.2015 IS AGAINST THE ORDER OF THE CIT (A) - 22 , MUMBAI DATED 18.08.2015 FOR THE ASSESSMENT YEAR 2007 - 2008 . 2. IN THIS APPEAL, REVENUE RAISED THE FOLLOWING GROUNDS WHICH READ AS UNDER: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD CIT (A) ERRED IN CANCELLING THE ORDER U/S 143(3) R.W.S 263 OF THE ACT DATED 28.3.2013 WITHOUT ADJUDICATING INTO THE MERITS OF THE CASE. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND I N LAW, THE LD CIT (A) ERRED IN CANCELLING THE ASSESSMENT ORDER U/S 143(3) R.W.S 263 OF THE IT ACT, 1961 RELYING ON THE ORDER QUASHING THE ORDER U/S 263 IS BEING CONTESTED FURTHER. 3. AT THE OUTSET, LD COUNSEL FOR THE ASSESSEE BRIEFLY NARRATED THE FACTS OF THE CASE AND BROUGHT OUR ATTENTION TO THE ORDER OF THE TRIBUNAL IN ITA NO. 3493/M/2012 (AY 2007 - 2008 ), DATED 03.06.2015 , COPY OF WHICH IS PLACED ON RECORD AND MENTIONED THAT VIDE THE SAID ORDER, THE TRIBUNAL QUASHED THE REVISION ORDER DATED 29.02.2012 OF THE CIT - 10, PASSED U/S 263 OF THE ACT. THEREFORE, CONSIDERING THE SAID TRIBUNALS ORDER (SUPRA), THE FRESH ASSESSMENT ORDER MADE U/S 143(3) R.W.S 263 OF THE ACT, DATED 28.3.2013 BECOMES INFRUCTUOUS. FURTHER, BRINGING OUR ATTENTION TO THE ORDER OF THE C IT (A) - 22, MUMBAI DATED 18.8.2015 , LD COUNSEL 2 FOR THE ASSESSEE MENTIONED THAT VIDE 4.1 OF HIS ORDER, CIT (A) CANCELLED THE IMPUGNED ASSESSMENT ORDER RELYING ON THE SAID TRIBUNALS DECISION DATED 3.6.2016 (SUPRA) AND THEREFORE, THE SAID DECISION CIT (A) NEE D NOT BE ALTERED. 4. ON THE OTHER HAND, LD DR FOR THE REVENUE RELIED ON THE ORDERS OF THE REVENUE AUTHORITIES. 4. AFTER HEARING BOTH THE PARTIES AND ON PERUSAL OF THE SAID TRIBUNALS ORDER (SUPRA), DATED 17.02.2016 AS WELL AS THE DECISION OF THE CIT (A) IN GENERAL AND PARA 4.1 IN PARTICULAR, WE FIND THE SAID DECISION OF THE CIT (A) IS RELEVANT HERE. CONSIDERING THE SIGNIFICANCE OF THE SAID PARA 4.1 OF THE CIT (A)S ORDER AND FOR THE SAKE OF COMPLETENESS OF THIS ORDER, THE SAME IS EXTRACTED AS UNDER: - 4.1. DURING THE APPEAL PROCEEDINGS, THE APPELLANT THROUGH ITS A/R SUBMITTED THAT IT HAS RECEIVED A FAVOURABLE ORDER FROM ITAT IN RESPECT OF THE APPEAL FILED AGAINST THE ORDER PASSED BY THE COMMISSIONER U/S 263 OF THE ACT. A COPY OF THE SAID ORDER DATED 3.6.2 015 OF ITAT, MUMBAI A BENCH IN ITA NO.3493/MUM/2012 WAS ALSO SUBMITTED. PERUSAL OF THE HONBLE TRIBUNALS ORDER SHOWS THE APPELLANT HAD CHALLENGED THE ORDER U/S 263 PASSED BY THE COMMISSIONER TAKING INTER ALIA IN ITS GROUNDS OF APPEAL THE ISSUE OF WRONG ASSUMPTION OF JURISDICTION U/S 263 BY THE COMMISSIONER AS WELL AS OTHER GROUNDS ON MERITS. IT IS SEEN THAT THE TRIBUNAL HAS DECIDED THE MATTER IN FAVOUR OF THE APPELLANT. THE IMPUGNED ORDER PASSED U/S 143(3) R.W.S 263 OF THE ACT, DATED 28.3.2013, THEREF ORE, DOES NOT SURVIVE AS IT WAS PASSED CONSEQUENT TO THE ORDER U/S 263 OF THE ACT PASSED BY THE COMMISSIONER WHICH HAS BEEN QUASHED BY THE ITAT. AS ON DATE, THERE IS NOTHING ON RECORD TO INDICATE THAT THE ITATS ORDER DATED 3.6.2015 HAS BEEN MODIFIED / OV ERRULED / REVERSED BY A HIGH APPELLATE AUTHORITY. RESPECTFULLY, FOLLOWING THE ORDER OF THE HON BLE TRIBUNAL, THE IMPUGNED ASSESSMENT ORDER DATED 28.3.2013 IS HEREBY CANCELLED WITHOUT ADJUDICATING ON THE MERITS OF THE GROUNDS OF APPEAL. 5. FROM THE ABOV E, IT IS CLEAR THAT THE CIT (A) RELIED ON THE DECISION OF THE TRIBUNAL VIDE ITS ORDER DATED 3.6.2015 (SUPRA), WHEREIN THE TRIBUNAL QUASHED THE REVISION ORDER OF THE CIT. IN THAT CASE, THE FRESH ASSESSMENT ORDER MADE BY THE AO U/S 143(3) R.W.S 263 DOES NOT HAVE LEGS TO STAND. CONSIDERING THIS FACT, CIT (A) CANCELLED THE SAID FRESH ASSESSMENT ORDER OF THE AO. THEREFORE, IN OUR OPINION, THE DECISION TAKEN BY THE CIT (A) IS FAIR AND REASONABLE AND IT DOES NOT CALL FOR ANY INTERFERENCE. CONSEQUENTLY, THE APPE AL FILED BY THE REVENUE IS REQUIRED TO BE DISMISSED AS INFRUCTUOUS. 6. IN THE RESULT, APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 18 TH JULY, 2016. S D / - S D / - ( SANJAY GARG ) (D. KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; 18.07.2016 3 . . ./ OKK , SR. 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