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Income Tax Appellate Tribunal, [ DELHI BENCH “B”: NEW DELHI ]
Before: SHRI AMIT SHUKLA & DR. B.R.R. KUMAR
O R D E R PER AMIT SHUKLA, J. M. 1. The aforesaid appeal has been filed by the Revenue against the impugned order dated 26.02.2019 passed by the ld. Commissioner of Income Tax (Appeals)–2, New Delhi [hereinafter referred to CIT (Appeals)], in relation to the quantum of assessment passed under 2 Section 143(3) / 263 of the Income Tax Act, 1961 (the Act) for assessment year 2012-13.
Grounds of appeal raised by the Revenue are as under:-
“1. Whether on the facts and the circumstances of the case and law, the ld. CIT (Appeals) has erred in deleting the disallowance made u/s 80IA of the Income Tax Act, 1961 without examining the merits of the case.
2. The appellant craves leave for reserving the right to amend, modify, alter, add or forego any ground(s) of appeal at any time before or during the hearing of this appeal. “
At the outset, the ld. Counsel submitted that the present proceedings are in pursuance of order passed under Section 263 of the Act by the Pr. CIT-2, New Delhi whereby earlier assessment order was set-aside, on the issue of disallowance under Section 80IA of the Act. Now the order of the ld. PCIT passed under Section 263 of the Act has now been quashed by the Tribunal in (Del) of 2017 vide order dated 18.02.2019; and once the order under Section 263 has been quashed, then the present assessment order itself has become infructuous and accordingly the appeal of the Revenue has become infructuous.
On the other hand, the ld. CIT – DR, had sought for an adjournment on the ground of clubbing it with subsequent year’s appeals being (Del) 2019 and ITA. No. 354 (Del) 2021 and also requested to file paper book in this appeal. She further pointed out that there are some confusion regarding the date and the assessment year in the ITAT order. Like, Assessment Year mentioned in the caption of the ITAT order is 2012-13, whereas in first para it has 3 been mentioned as assessment year 2011-12. She further pointed out that the ld. CIT (Appeals) in the concluding para has written ITAT order dated 18.02.2018 whereas it is 18.02.2019.
We have perused the order of the ITAT and impugned order of the CIT (Appeals). We find that the ld. CIT (Appeals) has observed and held as under:-
“6.2 Ground Nos. 2 & 3 : These grounds of appeal are directed against disallowance of deduction under section 80. IA. This order was passed giving effect to order u/s 263 dated 30.03.2017 by ld. PCIT-2, Delhi.
6.3 Similar order was passed under Section 263 in the preceding year i.e. A.Y. 2011-12 by PCIT vide order dated 31.03.2016 setting aside order under Section 143(3) and thereby directing to disallow deduction under section 80 IA. The order u/s 263 was challenged in ITAT. Subsequently the ITAT vide order dated 23.10.2018 set aside the order of PCIT and restored that of the Assessing Officer.
6.4 Further, the order of CIT (Appeals) deleting the disallowance u/s 80 IA in respect of order under Section 143(3) / for Assessment Year 2011-12 was also upheld vide order of ITAT dated 8.02.2019.
6.5 Further, the order of PCIT under Section 263 for Assessment Year 2012-13 was also challenged before the Tribunal. Vide order dt. 18.02.2018, the Tribunal has set aside the order u/s 263 and restored that of the Assessing Officer allowing deduction under Section 80 IA. Since the basis of the impugned order is already quashed, the consequential order passed by the Assessing Officer under Section 143(3) / 263 does not survive.
4 In view of adverse orders on the issue of disallowance of deduction in earlier year and the impugned year, the disallowance and addition made is deleted. The grounds are allowed. “
Further, from the perusal of the ITAT’s order dated 18.02.2019, we find that the Tribunal has set aside the order of the Pr. CIT and restored the original assessment order dated 18.03.2014 passed under Section 143(3) of the Act. Though by mistake in the first para of the ITAT order it is mentioned as assessment year 2011-12, however, in the title of the case it is mentioned as 2012-13 and also from the perusal of the internal order also we find that that the matter was relating to same proceedings u/s 263 which was relevant for assessment year 2012-13 only. In so far as the mentioning of order dated 18.02.2018 of the ITAT order in para 6.5 of the CIT (Appeals) order it appears to be a typographical mistake because the appeal was heard on 13.02.2019 and order was pronounced on 18.02.2019. Even otherwise also the subject matter of present assessment order which has been passed in pursuance of order of the Pr. CIT under Section 263 of the Act, now has been quashed by the order of the Tribunal whereby the Pr. CIT’s order has been set aside and original assessment order has been restored. Consequently the present assessment order passed u/s 263/143(3 has been rendered infructuous. Thus, there is no substance in the objection raised by the ld. [CIT] – DR and same is rejected.
In so far as the other objections that it should be clubbed with other years appeals, the ld. Counsel has clarified that those are completely on other issues and so far as this year is concerned, the assessment order is itself infructuous. Therefore, such plea raised by 5 the ld. [CIT] – DR is not tenable. We are in agreement with the contention of the ld. Counsel. Now that assessment order which has passed in pursuance of order under Section 263 of the have been quashed by the Tribunal, therefore, the present appeal filed by the Revenue is dismissed as infructuous.
In the result, the appeal of the Revenue is dismissed.
Order pronounced in the open court on : 16/03/2022.