COLOUR PLUS FASHIONS LTD, MUMBAI V. DCIT CC 8(1), MUMBAI

ITA 5836/MUM/2016

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 7824 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 2 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-12-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2007-2008
• Appeal Filed On: 30-09-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: RAKESH MOHAN
• Keywords: Depreciation; Principle of natural justice; Right to appeal
• Section: 143(3); 153A; 14A; 147; 132; 15

Judgement Text

, , IN THE INC OME TAX APPELLATE TRIBUNAL C , BENCH MUMBAI BEFORE SHRI R.C. SHARMA, AM & SHRI SANDEEP GOSAIN , JM ITA NO S . 5836,5837,5838,5839 & 5840 /MUM/201 6 A.YS :2007 - 08, 2008 - 09, 2009 - 10 , 2010 - 11 & 2011 - 12 ) COLOUR PLUS FASHIONS LTD., NEW HIND HOUSE, N.M. MARG, BALLARD, ESTATE, MUMBAI 400 001. VS. DCIT, CENTRAL CIRCLE 8(1), MUMBAI. ./ ./ PAN/GIR NO. : AA BCC3401B ( / APPELLANT ) .. ( / RESPONDENT ) / ASSESSEE BY : SHRI RAKESH MOHAN, (AR) / REVENUE BY : SHRI ABI RAMA KARTHIKEYAN / DATE OF HEARING : 19.12 .2018 / DATE OF PRONOUNCEMENT : 27 .12 .2018 / O R D E R PER R.C.SHARMA (A.M) : THESE ARE THE APPEAL S FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A) - 5 0 MUMBAI, DATED 07.06.2016 , FOR THE ASSESSMENT YEAR S 2007 - 08, 2008 - 09, 2009 - 10, 2010 - 11 & 2011 - 12 , IN THE MATTER OF ORDER PASSED U/S.143(3) R.W.S 153A OF THE I.T. ACT. 2. THE COMMON GRIEVANCE OF THE ASSESSEE IN ALL THE YEARS PERTAINS TO DISALLOWANCE OF CLAIM OF DEPRECIATION ON THE CORRECT WRITTEN DOWN VALUE OF BLOCK OF ASSETS. COLOUR PLUS FASHIONS LTD, MUMBI ITA NO S. 5836 TO 5840/MUM/2016 2 3. RIVAL CONTENTIONS HAVE BEEN HEARD AND PERUSED THE RECORDS. FACTS IN BRIEF ARE THAT THE ASSESSEE WAS SUBJECT TO SEARCH U/S 132(1) OF THE IT ACT, 1961 (THE ACT) ON 03.11.2011. P RESENT APPEALS ARE EMANATING FROM ORDER OF ASSESSMENT U/S 153A OF THE ACT PASSED BY A.O AND SUB SEQUENT ORDERS OF THE FIRST APPELLATE COMMISSIONER. AN IDENTIACAL ISSUE IS INVOLVED IN ALL THESE APPEALS FOR A.Y 2007 - 08 TO 2011 - 12, THAT OF QUANTUM OF DEPRECIATION ALLOWABLE (EXCEPT FOR A.Y 2009 - 10 WHERE ADDITIONAL GROUND OF APPEAL HAS ALSO BEEN PREFERR ED). THE ISSUE OF DEPRECIATION IS ARISING FROM ASSESSMENT ORDERS OF EARLIER THREE ASSESSMENT YEARS I.E A.Y 2004 - 05, 2005 - 06 AND 2006 - 07, WHEREIN THE REGULAR ASSESSMENT U/S 143(3) / 147 OF THE ACT, THE A.O HAD MADE SOME ADJUSTMENTS IN THE DEPRECIATION ALLO WABLE TO ASSESSEE . THESE ADJUSTMENTS WERE OF TWO KINDS, EITHER IN RATE OF DEPRECIATION APPLICABLE TO A PARTICULAR ASSET / BLOCK OR WHERE A.O HAD HELD CERTAIN EXPENDITURES CLAIMED AS REVENUE TO BE OF CAPITAL NATURE AND CONSEQUENTLY ALLOWED DEPRECIATION ON THE SAME. THE ADJUSTMENTS MADE IN THESE THREE YEARS ARE DETAILED HEREUNDER: 1. IN ORDER FOR A.Y 2004 - 05, TOW ADJUSTMENTS WERE MADE IN RESPECT OF DEPRECIATION. (I) DEPRECIATION ON VEHICLE PUT TO USE FOR LESS THAN 180 DAYS WERE ALLOWED AT 50% OF ELIGIBLE DE PRECIATION, WHICH LED TO ENHANCEMENT OF THE BLOCK BY RS. 58,895/ - AND, COLOUR PLUS FASHIONS LTD, MUMBI ITA NO S. 5836 TO 5840/MUM/2016 3 (II) EXPENDITURE ON SOFTWARE AMOUNTING TO RS. 4,37,806/ - CLAIMED REVENUE WAS HELD CAPITAL IN NATURE AND DEPRECIATION OF RS. 1,83,243/ - WAS GRANTED LEADING TO INCREASE IN VALUE OF BLOCK BY RS. 2,54,563/ - 2. IN ORDER FOR A.Y 2005 - 06, DEPRECIATION OF RS. 28,90,246/ - WAS DISALLOWED ON MACHINERY PURCHASED UNDER TECHNOLOGY UP - GRADATION FUND SCHEME OF MINISTRY OF TEXTILES, WHICH AGAIN LED TO ENHANCED VALUE OF BLOCK OF ASSET. 3. IN ORDER FOR A. Y 2006 - 07, T W O ADJUSTMENTS WERE MADE IN RESPECT OF DEPRECIATION. (I) AN ITEM OF EXPENDITURE AT RS. 3,70,694/ - WAS CONSIDERED CAPITAL IN NATURE AND TREATED AS FURNITURE AND CONSEQUENTLY, DEPRECIATION OF RS. 37,069/ - WAS ALLOWED. THIS LED TO INCREASE IN VAL UE OF BLOCK BY RS. 3,33,625/ - . (II) ALSO, IN THE ORDER, SOFTWARE EXPENDITURE OF RS. 5,62,450/ - WAS CONSIDERED AS CAPITAL IN NATURE AND DEPRECIATION @ 30% WAS ALLOWED OF RS. 1,68,735/ - . THE DISALLOWANCE AMOUNTED TO RS. 3,93,715/ - . THIS LED TO INCREASE IN THE VALUE OF BLOCK OF ASSET. 4. THERE IS ALSO NO DISPUTE TO THE FACT THAT THE ABOVE ADJUSTMENTS MADE BY THE A.O. WERE NOT CONTESTED IN APPEAL BY THE ASSESSEEE AND THEREFORE, ADJUSTED VALUE OF BLOCK HAD TO BE ADOPTED FOR GRANT OF DEPRECIATION. WE COLOUR PLUS FASHIONS LTD, MUMBI ITA NO S. 5836 TO 5840/MUM/2016 4 OBSERVE THAT IN NONE OF THE THREE ASSESSMENTS DETAILED ABOVE, THE A.O, HAD PREPARED THE BLOCK OF ASSETS AND THE CARRY FORWARD VALUES OF ASSETS FOR SUBSEQUENT YEARS. CONSEQUENT TO SEARCH, THE ASSESSEE HAD FILED RETURN FOR A.YS. 2006 - 07 AND ONWARDS TILL A.Y 2011 - 1 2. IN THESE RETURNS, THE APPELLANT HAD CLAIMED DEPRECIATION AFTER INCORPORATING THE CHANGED VALUE OF BLOCK OF ASSETS ON ACCOUNT OF ADJUSTMENTS MADE BY THE A.O AS DETAILED ABOVE . IN THE ASSESSMENT ORDER FOR A.Y. 2006 - 07, IN RESPECT OF RETURN FILED U/S. 15 3A OF THE ACT, THESE ADJUSTMEN TS HAVE BEEN ACCEPTED BY THE A.O . AND DEPRECIATION HAS BEEN ALLOWED ON AUGMENTED VALUE OF BLOCK OF ASSETS. HOWEVER, FOR A.Y. 2007 - 08 AND FOR SUBSEQUENT ASSESSMENT YEARS, SUCH ADJUSTMENTS WHICH WERE REFLECTED BY THE APPELLAN T IN THE RETURN OF INCOME U/S. 153A OF THE ACT WERE NOT ALLOWED. IT WAS ARGUED BY LD. AR THAT THE DEPRECIATION LEGALLY ALLOWABLE ON THE CORRECT VALUE OF BLOCK OF ASSETS SHOULD BE ALLOWED FOR A.Y. 2007 - 08 AND ONWARDS. FORM THE RECORD WE FIND THAT T HE A . O HAS DISALLOWED THE CLAIM OF ASSESSEE ON THE GROUND THAT RECONCILIATION HAS NOT BEEN FILED BY THE ASSESSEE . IN THIS CONNECTION, THE RELEVANT PORTION OF THE ORDER OF ASSESSMENT U/S. 153A OF THE ACT FOR A.Y. 2007 - 08 IS REPRODUCED HEREUNDER: '7. ON PERUSAL OF THE RETURN FILED U/S. 153A, IT IS OBSERVED THAT THE ASSESSEE HAD RETURNED INCOME LOWER THAN ASSESSED INCOME U/S. 143(3). THE ASSESSEE WAS ASKED TO PROVIDE RECONCILIAT ION FIN THE SAME. THE AS SESSEE SUBMITTED THAT IN ITS RETURN OF INCOME FILED U/S. 153A , TH EY HAVE GIVEN EFFECT SO THE ASSESSMENT ORDERS D FOR EARLIER YEARS DUE TO WHICH DEPRECIATION AMOUNT HAS BEEN REVISED. COLOUR PLUS FASHIONS LTD, MUMBI ITA NO S. 5836 TO 5840/MUM/2016 5 THE ABOVE CONTENTION OF TH E ASSESSEE CANNOT BE ACCEPTED AS THE ASSESSEE HAS NOT GIVEN THE RECONCILIATION OF THE ADDITIONAL CLAIM OF DEPRECI ATION. HENCE THE TOTAL INCOME OF TH E ASSESSEE REMAINS UNCHANGED AS PER ORDER U/S. 143(3).' 5. FROM THE RECORDS WE OBSERVED THAT A. O. HAS NOT DENIED ASSESSEES CLAIM OF CORRECT DEPRECIATION. HIS ONLY CONTENTION IS THAT RECONCILIATION HAS NOT BEEN FILED IN THE ASSESSMENT PROCEEDINGS U/S. 153A OF THE ACT. IN THIS CONNECTION, THE FOLLOWING ARGUMENTS ADVANCED BY THE LD. AR NEED CONSIDERATION. 1. THAT RECONCILIATION FOR ALL THE ASSESSMENT YEARS, INCLUDING A.Y 2006 - 07 WAS FILED IN THE ASSESSMENT PROC EEDINGS VIDE LETTER DATED 27.03. 2014. 2) THAT ON THE BASIS OF THIS RECONCILIATION ITSELF, THE A.O. HAD GRANTED THE CORRECT DEPRECIATION TO THE APPELLANT IN ASSESSMENT U/S 153A FOR A.Y. 2006 - 07 AND THAT IS WHY THE APPELLANT HAS NOT PREFERRED ANY APPEAL FOR A.Y. 2006 - 07. 3) THAT ONCE HAVING GRANTED CORRECT DEPRECIATION FOR A.Y, 2006 - 07, THE A.O. WAS DUTY BOUND TO DRAW THE BLOCK OF ASSETS RELEVANT FOR SUBSEQUENT A.Y. 2007 - 08 UNDER CONSIDERATION HERE AND, THAT IT WAS NOT DONE BY THE A.O. 4) THAT AFTER INTRODUCTION OF EXPLANATION 5 IN SE CTION 32(1) OF THE ACT BY THE FINANCE ACT, 2001 W .E.F FROM 01.04.2002, THE ONUS TO GRANT DEPRECIATION IS UPON THE A.O., IRRESPECTIVE OF WHETHER THE ASSESSEE HAS CLAIMED DEPRECIATION OR OTHERWISE. IT I S THE CONTENTION OF THE APPELLANT HERE THAT IN THE DISCHARGE OF THIS ONUS, A.O. IS DUTY BOUND TO GRANT CORRECT DEPRECIATION AVAILABLE TO COLOUR PLUS FASHIONS LTD, MUMBI ITA NO S. 5836 TO 5840/MUM/2016 6 ASSESSEE BASED ON T HE RECORDS AVAILABLE WITH THE A. O. THIS FOLLOWS FROM THE PRINCIPLE EVOLVED BY APEX COURT IN SEVERAL DECI SIONS THAT IT IS THE DUTY OF A.O . TO COMPUTE THE CORRECT INCOME CHARGEABLE TO TAX. THE HON'BLE TRIBUNAL ALSO HAS HELD REPEATEDLY THAT IT IS THE CORRECT INCOME CHARGEABLE TO TAX, WHICH HAS TO BE COMPUTED BY THE A.O. IN THIS CONNECTION, THE LANDMARK JUD GMENT IN THE CASE OF CHICAGO PNEUMATIC INDIA LTD - REPORTED IN 15 SOT 252 NEEDS PARTICULAR MENTION. THIS JUDGMENT HAD ALSO PLACED RELIANCE UPON CBDI CIRCULAR NO. 14(XL - 35) DATED 11.04.1955 TO CONCLUDE THAT A.O. HAS TO DETERMINE THE CORRECT INCOME CHARGEABLE TO TAX. IN THIS SITUATION, DISALLOWANCE OF CLAIM MADE BY THE APPELLANT IN RETURN U/S. 153A OF THE ACT IN THE MANNER DONE BY THE A.O. THAT RECONCILIATION HAS NOT BEEN FILED BY THE ASSESSEE IS ABSOLUTELY AGAINST THE PRINCIPLE OF NATURAL JUSTICE. THIS IS PAR TICULARLY IN THE BACKGROUND THAT FOR THE IMMEDIATELY PRECEDING A.Y. 2006 - 07, IN THE ORDER PASSED U/S. 153A OF THE ACT, SUCH AN ADJUSTMENT HAS BEEN ACCEPTED BY THE A.O. THE ENTIRE PHILOSOPHY OF CONSISTENCY IN ASSESSMENT PROCEEDINGS SO SUCCINCTLY ELABORATED BY HONBLE BOMBAY HIGH COURT IN THE CASE OF H.A. SHAH & CO. REPORTED IN 30 ITR 618 AND BY APEX COURT IN THE CASE O F RADHA SOAMI SATSANG REPORTED IN 193 ITR 321 AND FOLLOWED BY HONBLE MUMBAI TRIBUNAL REPEATEDLY IN SEVERAL JUDGMENTS HAVE BEEN VIOLATED. 6. I N VIEW OF THE ABOVE IT WAS ARGUED BY THE LD. AR THAT FOR THE A.Y 2007 - 08, THE A.O BE DIRECTED TO GRANT CORRECT DEPRECIATION IN ORDER U/S 153A OF THE ACT AFTER TAKING INTO ACCOUNT THE CORRECT POSITION OF BLOCK OF ASSETS AS EMANATING FROM THE ORDER OF ASSESS MENT YEAR FOR A.Y 2006 - 07 PASSED BY A.O U/S 153A OF THE ACT, WHEREIN THE ADJUSTMENT MADE IN ASSESSMENT U/S 143(3) / 147 OF THE FOR A.Y 2004 - 05, 2005 - 06 & 2006 - 07 HAVE BEEN TAKEN INTO ACCOUNT. IT WAS ALSO PRAYED THAT IN THE APPEAL FOR COLOUR PLUS FASHIONS LTD, MUMBI ITA NO S. 5836 TO 5840/MUM/2016 7 SUBSEQUENT A.YS 2008 - 09 TO 2011 - 2012 CASCADING EFFECT OF DEPRECIATION BE DIRECTED TO BE ALLOWED. 7. ON THE OTHER HAND THE LD. DR RELIED ON THE ORDER OF THE LOWER AUTHORITIES. 8. WE HAVE CONSIDERED RIVAL CONTENTIONS AND CAREFULLY GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AND FOUN D FROM RECORD THAT PARTIAL DECLINE OF CLAIM DEPRECIATION WAS UPHELD BY CIT(A) AFTER OBSERVING THAT THE PRINCIPLES LAID DOWN BY THE SPECIAL BENCH OF MUMBAI ITAT IN THE CASE OF ALL CARGO GLOBAL LOGISTICS LTD., SUBSEQUENTLY UPHELD BY HONBLE BOMBAY HIGH COURT HAVE TO BE INVOKED IN PRESENT CASE UNDER CONSIDERATION. HE HAS GIVEN HIS FINDING IN THE FOLLOWING TERMS. 5.4 THUS, SPECIAL BENCH OF ITAT HAS LAID DOWN CLEARLY THE JURISDICTION OF THE A.O IN PROCEEDINGS U/S 153A OF THE ACT. THE HONBLE BENCH HAS HELD THAT IN RESPECT OF AN ASSESSMENT YEAR WHERE ASSESSMENT IS NOT ABATED CONSEQUENT TO THE SEARCH, ASSESSMENT WILL BE MADE, IN ADDITION TO THE INCOME THAT HAS ALREADY ASSESSED ON THE BASIS OF INCRIMINATING MATERIAL SEIZED. THE EXPRESSION IN ADDITION TO THE INCOME THAT HAS ALREADY BEEN ASSESSED USED BY THE HONBLE BENCH IN PARA 5.8 OF THE ORDER IMPLIES THAT THERE IS NO SCOPE OF CONSIDERATING ANY FRESH CLAIM IN THE COURSE OF PROCEEDINGS U/S 153A OF THE ACT. 9 . FROM THE RECORD WE FOUND THAT IN THE R ETURN OF INCOME FILED U/S. 153A OF THE ACT, THE ASSESSEE HAD NOT MADE ANY FRESH CLAIM FOR DEPRECIATION. THE CLAIM WAS ONLY FOR CORRECT DEPRECIATION ON THE BASIS OF THE CORRECT BLOCK OF ASSET ALREADY QUANTIFIED, BUT NOT EXCLUSIVELY SPELT OUT IN THE ORDER OF ASSESSMENT U/S. 143(3)/147 OF THE ACT FOR A.YS. 2004 - 05, 2005 - 06 & 2006 - 07. SUCH RECALCULATION OF DEPRECIATION HAS TO BE AUTOMATIC AND HAS TO FLOW FROM THE ORDERS OF THE ASSESSMENT OF THE EARLIER YEARS AND DOES NOT TANTAMOUNT TO ANY FRESH CLAIM. THE RET URN U/S. 153A OF THE ACT IS DEEMED COLOUR PLUS FASHIONS LTD, MUMBI ITA NO S. 5836 TO 5840/MUM/2016 8 TO BE RETURNED U/S. 139(1) OF THE ACT. WHEN THE ASSESSEE FILED ITS RETURN OF INCOME U/S. 153A OF THE ACT, THE SCOPE OF SUCH RETURN NEEDS ELABORATION. IF THE FINDING OF LEARNED CIT(A) IS TO BE ACCEPTED, THE ASSESSES SHALL BE BOUND TO FILE RETURN OF INCOME U/S. 153A ON THE BASIS OF ASSESSED INCOME FOR A PARTICULAR YEAR AND INCORPORATE THEREIN, OFFER OF INCOME BASED UPON INCRIMINATING MATERIAL FOUND IN THE SEARCH. IF THESE WERE TO BE CORRECT, ALL THE ADDITIONS MADE IN THE ASS ESSMENT U/S. 143(3) OF THE ACT SHALL BECOME AN INTEGRAL PART OF RETURNED INCOME U/S. 153A OF THE ACT, IRRESPECTIVE OF WHETHER THESE ADDITIONS U/S, 143(3) OF THE ACT IN ASSESSMENT WERE DISPUTED BY THE ASSESSEE IN APPEALS. CONSEQUENTLY, THE ASSESSEE WOULD LO SE ITS RIGHT OF APPEAL BECAUSE ONCE HAVING FILED RETURNED TOTAL INCOME' U/S, 153A OF THE ACT AFTER INCORPORATING ADDITIONS MADE BY THE A.O. IN ASSESSMENT U/S. 143(3) OF THE ACT, THE ASSESSE E WOULD LOSE ITS RIGHT TO FILE APPEAL ON THESE ADDITIONS FOR ASSESS MENT U/S. 153A OF THE ACT. AS A RESULT, ANY PENDING APPEALS AGAINST SECTION 143(3) ORDER SHALL LOOSE ITS SIGNIFICANCE. THIS CANNOT BE THE INTENTION OF THE LEGISLATURE. THEREFORE, IN ANY RETURN TO BE FILED U/S, 153A OF THE ACT, THE ASSESSEE HAS A LIBERTY TO CLAIM AND FILE TOTAL INCOME AS CONSIDERED CORRECT BY THE ASSESSEE AND THEREFORE IN FILING THE TOTAL INCOME, ASSESSEE WOULD BE RIGHT IN NOT INCORPORATING THE ADDITIONS MADE U/S. 143(3) OF THE ACT BY THE A.O. TO THE EXTENT THESE ARE DISPUTED. IT FOLLOWS THA T BECAUSE THE RETURNED INCOME U/S, 153A OF THE ACT HAS TO BE THE CORRECT TOTAL INCOME , THE ASSESSEE HAS THE RIGHT TO CLAIM THE DEPRECIATION BASED UPON THE CORRECT BLOCK OF ASSET S COMING FROM THE EARLIER YEARS. 10. IN VIEW OF THE ABOVE WE CAN SAFELY CONCLUDE THAT THE RETURN OF INCOME FILED BY THE ASSESSEE IN PROCEEDINGS U/S 153A OF THE ACT AFTER CLAIMING FOR DEPRECIATION ON CORRECT BLOCK OF ASSETS IS LEGALLY CORRECT APPROACH TO BE ADOPTED IN FILING OF RETURN. IT A LSO NEEDS MENTION THAT THE APPROACH OF FIRST APPELLANT AUTHORITY IS AGAINST THE PRINCIPLES ELABORATE D IN COLOUR PLUS FASHIONS LTD, MUMBI ITA NO S. 5836 TO 5840/MUM/2016 9 PRECEDING PARAGRAPHS THAT IT IS CORRECT TAXABLE INCOME WHICH HAS TO BE BROUGHT TO CHARGE OF TAX AND, THAT IN PROCEEDINGS U/S 153A OF THE ACT, A.O DETER MINES NOTHING ELSE BUT TOTAL INCOME. 11. IN VIEW OF THE ABOVE DISCUSSION WE DIRECT THE A.O TO ALLOW THE ASSESSEES CLAIM OF DEPRECIATION IN ALL THE YEARS UNDER CONSIDERATION ON THE BASIS OF REVISED WDV SO WORKED OUT , WE DIRECT ACCORDINGLY. 12. FOR THE A.Y 2009 - 10 ASSESSEE HAS TAKEN AN ADDITIONAL GROUND WHICH READS AS UNDER: WITHOUT PREJUDICE TO GROUND NO.1 AND 2 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE A.O ERRED IN MAKING DISALLOWANCE U/S 14A OF RS. 27,22,000/ - ON THE BASIS OF ORDER PASSED U/S 143(3) DATED 28.12.2011, WHICH WAS NON - EST., THE PROCEEDINGS HAVING ABATED CONSEQUENT TO SEARCH U/S 132 OF THE ACT ON 03.11.2011. THE APPELLANT PRAYS THAT THE ADDITIONS MADE BY THE A.O IN THE ORDER PASSED U/S 153A BE IGNORED AND THAT THE TOTAL INCOME SHALL BE ASSESSED ON THE BASIS OF INCOME RETURNED BY THE APPELLANT U/S 153A OF THE ACT. 13. IT WAS ARGUED BY LD. AR THAT T HE ACTION U/S. 132(1) OF THE ACT WAS UNDERTAKEN ON 03.11.2011. ON THIS DATE, PROCEEDINGS FOR ASSESSMENT U/S 143(3) OF THE ACT FOR A.Y 2009 - 10 WERE PENDING AND WERE GOING ON. CONSEQUENTLY, THESE PROCEEDINGS ABATED IN ACCORDANCE WITH 2 ND PROVISO TO SEC. 153A OF THE ACT. HOWEVER, A.O PROCEEDED TO COMPLETE ASSESSMENT U/S. 143(3) OF THE ACT VIDE ORDER DATED 26.12.2011, ON WHICH DATE HE HAD NO JURISDICTION U/S. 143(3) OF THE ACT TO PASS THE ORDER OF THE ASSESSMENT. THE ORDER OF THE ASSESSME NT DATED 26.12.2011 U/S 143(3) OF THE ACT IS COLOUR PLUS FASHIONS LTD, MUMBI ITA NO S. 5836 TO 5840/MUM/2016 10 THEREFORE NON EST AND THEREFORE, CANNOT BE ADOPTED FOR ASSESSMENT U/S 153A OF THE ACT. A PERUSAL OF THE ORDER OF THE ASSESSMENT FOR A.Y 2009 - 10 U/S 153A OF THE ACT REVEALS THAT IN PARAGRAPH 3, THE A.O HAS IMPOR TED THE ADDITION U/S 14A AMOUNTING TO RS. 27,22,000/ - FROM THE SAID ORDER U/S 143(3) AND ADJUSTED THE SAME IN ARRIVING AT A TOTAL INCOME U/S 153A OF THE ACT. AS ALREADY DESCRIBED THAT THE SAID ORDER OF ASSESSMENT U/S 153A OF THE ACT WAS NON EST, THEREFORE THE SO CALLED ADDITION U/S 14A OF THE ACT DOES NOT EXIST IN THE EYES OF LAW AND THEREFORE DESERVES TO BE IGNORED IN ASSESSMENT U/S 153A OF THE ACT. 14. WE HAVE HEARD THE RIVAL CONTENTIONS AND DO NOT FIND ANY MERIT IN THE ABOVE ARGUMENTS OF THE AR IN SO FA R AS ASSESSEES APPEAL AGAINST THE SAID ADDITION MADE U/S 143(3) OF THE ACT IS ALREADY PENDING BEFORE CIT(A). ACCORDINGLY, WE DISMISS THE GROUND SO RAISED BY THE ASSESSEE. 15. IN VIEW OF THE ABOVE APPEALS FILED BY THE ASSESSEE ARE ALLOWED IN PART TERMS INDI CATED HEREIN ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 2 7 . 12 .2018 SD/ - SD/ - ( SANDEEP GOSAIN ) (R.C. SHARMA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; DATED 27 .12 .2018 K RAVI KUMAR ( P.S.) / COPY OF THE ORDER FORWARDED TO : / BY ORDER, / ( ASSTT.REGISTRAR) , / ITAT, MUMBAI 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A), MUMBAI. 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. //TRUE COPY//