ITO WARD 2(1)(1), MUMBAI V. QUIKJET CARGO AIRLINES P. LTD, MUMBAI

ITA 6571/MUM/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 7140 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-01-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2009-2010
• Appeal Filed On: 19-11-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KAMAL MANGAL
• Keywords: Set aside
• Section: 143(3); 37(1); 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY , JUDICIAL MEMBER AND SHRI M. BALAGANESH , ACCOUNTANT MEMBER ITA NO. 6571 / MUM . /201 8 ( ASSESSMENT YEAR : 20 09 10 ) INCOME TAX OFFICER WARD 2(1)(1), MUMBAI . APPELLANT V/S QUIKJET CARGO AIRLINES PVT. LTD. 7 TH FLOOR, AFL HOUSE, LOK BHARTI COMPLEX MAROL MAROSHI ROAD, ANDHERI (EAST) MUMBAI 400 059 PAN AAACA3497L . RESPONDENT REVENUE BY : SHRI KAMAL MANGAL ASSESSEE BY : NONE DATE OF HEARING 1 3 .01.2020 DATE OF ORDER 31.01.2020 O R D E R PER SAKTIJIT DEY. J.M. T HE CAPTIONED APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER DATED 18 TH JUNE 2018, PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) 3, MUMBAI, FOR THE ASSESSMENT YEAR 2009 10. 2. BRIEF FACTS ARE, FOR THE IMPUGNED ASSESSMENT YEAR THE ASSESSEE COMPANY FILED ITS RETURN OF INCOME ON 30 TH SEPTEMBER 2009, DECLARING TOTAL INCOME AT NIL AFTER CLAIMING LOSS . THE ASSESSMENT IN CASE OF THE ASSESSEE WAS COMPLETED UNDER SECTION 143(3) OF THE ACT VIDE ORDER 2 QUIKJET CARGO AIRLINES PVT. LTD. DATED 23 RD DECEMBER 2011, DETERMINING THE LOSS AT ` 34,21,63,504, UNDER THE NORMAL PROVISIONS OF THE ACT AFTER DISALLOWING CERTAIN EXPENDITURE UNDER SECTION 37(1) OF THE ACT. THE ASSESSMENT ORDER SO PASSED WAS SUBJECT ED TO PROCEEDINGS UNDER SECTION 263 OF THE ACT AND ULTIMATELY LE ARNED COMMISSIONER OF INCOME TAX, IN EXERCISE OF POWER UNDER SECTION 263 OF THE ACT , SET ASIDE THE ASSESSMENT ORDER WITH A DIRECTION TO THE ASSESSING OFFICER TO MAKE DE NOVO ASSESSMENT AFTER CON DUCTING APPROPRIATE ENQUIRY. IN PU RSUANCE TO THE DIRECTIONS OF LEARNED COMMISSIONER OF INCOME TAX , THE ASSESSING OFFICER PASSED THE ASSESSMENT ORDER UNDER SECTION 143(3) R/W SECTION 263 OF THE ACT ON 9 TH FEBRUARY 2015, DETERMINING THE LOSS AT ` 21,87,81,6 48, UNDER THE NORMAL PROVISIONS OF THE ACT. AGAINST THE ASSESSMENT ORDER SO PASSED, THE ASSESSEE PREFERRED APPEAL BEFORE THE FIRST APPELLATE AUTHORITY. 3. DURING THE APPEAL PROCEEDINGS, LEARN ED COMMISSIONER (APPEALS) FOUND THAT WHILE DISPOSING OFF THE APPEA L FILED BY THE ASSESSEE CONTESTING THE ORDER PASSED UNDER SECTION 263 OF THE ACT, THE TRIBUNAL HAS QUASHED THE ORDER PASSED UNDER SECTION 263 OF THE ACT AND RESTORED THE ORIGINAL ASSESSMENT ORDER. ACCORDINGLY, HE QUASHED THE ASSESSMENT ORDER PASSED U /S 143 (3) R/W SECTION 263 OF THE ACT. 4. WHEN THE APPEAL WAS CALLED FOR HEARING, NO ONE WAS PRESENT ON BEHALF OF THE ASSESSEE TO REPRESENT THE CASE. THERE IS NO APPLICATION BY THE ASSESSEE SEEKING ADJOURNMENT EITHER. THEREFORE, WE PROCEED TO 3 QUIKJET CARGO AIRLINES PVT. LTD. DISPOSE OFF THE APPEAL EX PARTE QUA THE ASSESSEE AFTER HEARING THE LEARNED DEPARTMENTAL REPRESENTATIVE AND ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. 5. WE HAVE HEARD THE LEARNED DEPARTMENTAL REPRESENTATIVE AND PERUSED THE MATERIAL ON RECORD. UNDISPUTEDLY, THE ASSESSMENT ORDER UNDER CHALLENGE BEFORE LEARNED COMMISSIONER (APPEALS) WAS PASSED UNDER SECTION 143(3) R/W SECTION 263 OF THE ACT IN PURSUANCE TO THE D IRECTIONS OF LEARNED COMMISSIONER OF INCOME TAX UNDER SECTION 263 OF THE ACT. UNCONTROVERTED FACTS ARE, AGAINST THE ORDER PASSED UNDER SECTION 263 OF THE ACT, THE ASSESSEE HAD PREFERRED APPEAL BEFORE T HE TRIBUNAL AND THE TRIBUNAL VIDE ORDER DATED 15 TH FEBRUARY 2017, HAS QUASHED THE ORDER PASSED UNDER SECTION 263 OF THE ACT. THUS, ONCE THE ORDER PASSED UNDER SECTION 263 OF TH E ACT HAS BEEN QUASHED , ALL PROCEEDINGS IN PURSUANCE TO SU CH ORDER WOULD HAVE NO VALIDITY. THEREFORE , THE ASSESSMENT ORDER PASSED UNDER SECTION 143(3) R/W SECTION 263 OF THE ACT, WOULD HAVE NO LOCUS STANDI. THAT BEING THE CASE, LEARNED COMMISSIONER (APPEAL S) HAS CORRECTLY HELD THAT THE ASSESSMENT OR DER SO PASSED IS VOID AB INITIO , HENCE, HAS TO BE QUASHED. THERE BEING NO INFIRMIT Y IN THE AFORESAID DECISION OF LEARNED COMMISSIONER (APPEALS), WE UPHOLD THE SAME BY DISMI SSING THE GROUNDS RAISED. MERE FILING OF APPEAL BEFORE THE HONBLE HIGH COURT 4 QUIKJET CARGO AIRLINES PVT. LTD. CHALLENGING THE DECISION OF THE TRIBUNAL WOULD NOT MAKE THE ORDER INOPERATIVE. 6. IN THE RESULT, REVENUES APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN C OURT ON 31.01.2020 SD/ - M. BALAGANESH ACCOUNTANT MEMBER SD/ - SAKTIJIT DEY JUDICIAL MEMBER MUMBAI, DATED: 31.01.2020 COPY OF THE ORDER FORWARDED TO : (1) THE ASSESSEE; (2) THE REVENUE; (3) THE CIT(A); (4) THE CIT, MUMBAI CITY CONCERNED; (5) THE DR, ITAT, MUMBAI; (6) GUARD FILE . TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY ASSISTANT REGISTRAR ITAT, MUMBAI