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

ITA 715/KOL/2019

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 0682 (ITAT-KOLKATA)
• Duration Of Justice: 8 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-12-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 08-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUPRIYO PAL
• Assessee Lawyers: MANISH TIWARI
• Keywords: Set aside
• Section: 250; 263; 63

Judgement Text

, C , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: KOL KATA ( . . , . . , ) [BEFORE SHRI A. T. VARKEY, JM & DR. A.L. SAINI, AM] I.T.A. NOS. 712, 714 & 715/KOL/2019 ASSESSMENT YEARS: 2007-08 TO 2008-09 & 2011-12 DCIT, CIRCLE-9(1), KOLKATA. VS. M/S. APEEJAY SHIPPING LIMITED. (PAN: AADCS 7605 P) APPELLANT RESPONDENT FOR THE APPELLANT SH. SUPRIYO PAL, JCIT, SR. DR FOR THE RESPONDENT SH. MANISH TIWARI, FCA. DATE OF HEARING 17.12.2019 DATE OF PRONOUNCEMENT 20.12.2019 ORDER PER SHRI A.T.VARKEY, JM : THESE ARE APPEALS PREFERRED BY THE REVENUE AGAINST THE ORDER OF THE CIT(A)-3, KOLKATA DATED 13.11.2018 U/S 250 OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT) FOR ASSESSMENT YEARS (HEREINAFTER AY) 2007-08, 20 08-09 AND 2009-10 RESPECTIVELY. 2. THE GROUNDS OF APPEAL FOR AY 2007-08 IS CONSIDER ED AS THE LEAD CASE AND THE RESULT OF IT WILL BE FOLLOWED FOR THE REMAINING TWO ASSESSMENT YEARS FILED BEFORE US. THE GROUNDS ARE AS FOLLOWS: (A) WHETHER THE CIT(A) IS JUSTIFIED IN FACTS AND I N LAW TO ALLOW THE APPEAL OF APPEAL AGAINST THE REVISION ASSESSMENT ORDER OF THE ASSESS ING OFFICER DATED 29.01.2016 ON THE MERE GROUND THAT THE HON'BLE ITAT VIDE ITS ORDER DA TED 06.04.2016 HAD ALLOWED THE APPEAL OF THE ASSESSEE AND SET ASIDE THE ORDER PASS ED BY THE LD.PR.CIT-3,KOLKATA ON 30.03.2015 AND NOTVERIFYING THE FACTS AND CIRCUMSTA NCES OF THE CASE? (B) WHETHER THE CIT(A) IS JUSTIFIED IN FACTS AND IN LAW TO DECLARE THE IMPUGNED REVISION ASSESSMENT ORDER OF THE ASSESSING OFFICER DATED 29. 01.2016 AS NON-EST WITHOUT CONSIDERING THE FACTS OF THE CASE BASED ON ITS MERI T? (C) WHETHER THE CIT(A) IS JUSTIFIED IN FACTS AND IN LAW TO DECLARE THE IMPUGNED REVISION ASSESSMENT ORDER OF THE ASSESSING OFFICER DATED 29. 01.2016 AS NON-EST AND IS JUSTIFIED 2 I.T.A. NOS. 712, 714 & 715/KOL/2019 AYS: 2007-08 TO 2008-09 & 2011-12 APEEJAY SHIPPING LIMITED. ALLOWING THE APPEAL OF ASSESSEE AGAINST ORDER U/S.2 63 IN TECHNICAL GROUND WITHOUT JUSTIFYING THE LEGISLATIVE INTENTION OF SEC.H5JB & 115JAA? (D) THAT THE DEPARTMENT CRAVES LEAVE TO ADD, ALTER OR MODIFY ANY GROUNDS OF APPEAL IN THE COURSE OF APPELLATE-PROCEEDINGS. 3. FROM THE READING OF THE AFORESAID GROUNDS OF APP EAL OF THE REVENUE ITSELF IT IS CLEAR THAT THE AO HAS PASSED THE REASSESSMENT ORDER ON 29.01.2016 PURSUANT TO THE REVISIONAL ORDER OF LD. LD. PR. CIT-3, KOLKATA, PAS SED U/S 263 OF THE ACT DATED 30.03.2015. MEANWHILE IT IS ALSO NOTED THAT THE ASS ESSEE HAD PREFERRED AN APPEAL CHALLENGING THE REVISIONAL ORDER OF LD. PR. CIT-3 D ATED 30.03.2015 BEFORE THIS TRIBUNAL; AND THE TRIBUNAL WAS PLEASED TO SET ASIDE THE REVISIONAL ORDER OF THE LD. PR. CIT ON 06.04.2016. CONSEQUENTLY THE ORDER OF THE AO PASSED GIVING EFFECT TO THE LD. PR. CITS ORDER DATED 30.03.2015 BECAME AB-INITIO- VOID AND RESULTANTLY NON-EST IN THE EYES OF LAW. THE PRINCIPLE APPLICABLE IS BASED ON L EGAL MAXIM SUBLATO FUNDAMENTO CREDIT OPUS MEANING, IN CASE A FOUNDATION IS REMOV ED, THE SUPERSTRUCTURE FALLS. IN THE CASE OF BADRINATH VS GOVERNMENT OF TAMIL NADU AND ORS. 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 IS APPLICABLE TO JUDICIAL/QUASI-JUDICIAL PROCEEDINGS. TURNING BACK TO THE CASE IN HAND, THE AO HAS PASSED THE ORDER DATED 29.01.2016 BY GIVING EFFECT TO THE ORDER OF THE LD. PR. CIT DATED 30.03.2015 AND WHEN THAT ORDER OF THE LD. PR. CIT HAS BEEN SET ASIDE BY THE TRIBUNAL BY ORDER DATED 06.04.2016, THE FOUNDATION OF THE AOS ORDER DATED 29.01.2016 HAS BEEN REMOVED AND THEREFORE ALL CONSE QUENTIAL ACTION FALLS AND THEREFORE THE LD. CIT(A) RIGHTLY ALLOWED THE APPEAL OF THE ASSESSEE AND THEREFORE WE ARE INCLINED TO UPHOLD THE ORDER OF THE LD. CIT(A) AND DISMISS ALL THE APPEALS OF THE REVENUE. 4. IN THE RESULT, THE APPEALS OF THE REVENUE ARE DI SMISSED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 20TH DECEM BER, 2019. SD/- (A.L. SAINI) SD/-(A. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 20TH DECEMBER, 2019 3 I.T.A. NOS. 712, 714 & 715/KOL/2019 AYS: 2007-08 TO 2008-09 & 2011-12 APEEJAY SHIPPING LIMITED. BIDHAN (P.S.) COPY OF THE ORDER FORWARDED TO: 1. APPELLANT APEEJAY SHIPPING LIMITED, APEEJAY HOUSE , 1 ST FLOOR, 15, PARK STREET, KOLKATA-700 016. 2. RESPONDENT DCIT, CIRCLE-9(1), KOLKATA. 3. CIT(A)- 3, KOLKATA. (SENT THROUGH E-MAIL) 4. CIT 5. DR, KOLKATA BENCHES, KOLKATA. (SENT THROUGH E-MAIL) /TRUE COPY, BY ORDER, ASSISTANT REGISTRAR