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Income Tax Appellate Tribunal, “D” BENCH, AHMEDABAD
Before: SHRI PRAMOD KUMAR&
PER Ms. MADHUMITA ROY - JM:
The instant appeal has been filed before us by the revenue against the order dated 29.11.2017 passed by the Commissioner of Income Tax (Appeals)-1, Ahmedabad arising out of the order dated 28/12/2016 passed by the Deputy Commissioner of Income Tax, Circle – 1(1)(2), Ahmedabad under section 143(3) r.w.s. 263 of the Income Tax Act, 1961 (The Act) for the Assessment Year 2009-10 whereby and whereunder the appeal preferred by the assessee has dismissed as infructuous. Revenue has raised following grounds: “(1) That the Ld.CIT(A) has erred in law and on facts in holding the order u/s 143(3) r.w.s. as infructuous notwithstanding that said decision has not been accepted by the Department and further appeal has been preferred. (2) That the Ld.CIT(A) has erred in law and on facts in deleting the addition of Rs.48,00,00,000/- made by the Assessing Officer on account of remuneration received from partnership firm. (3) The appellant craves, to leave, to amend and/or to alter any ground or add a new ground which may be necessary.”
- 2 - ITA No.303/Ahd/2018 JCIT(OSD) vs. Cadila Healthcare Ltd Asst.Year – 2009-10
The facts of the case is this that the regular assessment order u/s 143(3) r.w.s 144(C)(5) of the Act was passed by the Assessing Officer on 23.01.2014 accepting its MAT computation determining book profit of Rs.1,77,27,48,435/-. Subsequently, while exercising the power u/s 263 of the Act assessee found the said order of assessment erroneous and prejudicial to the interest of the revenue and issued a show-cause notice to the assessee on 22.07.2015. The Learned PCIT ultimately directed the Learned Assessing Officer to make fresh assessment order after giving fresh opportunity to the assessee upon which reassessment proceeding was initiated culminating into the order of addition dated 28.12.2016 to the tune of Rs.48,00,00,000/- holding the payment received by the assessee from M/s. Zydus Healthcare Sikkim; is not a business income exempted as a share of business profit rather remuneration received for actively performing activities agreed upon with the said firm of Sikkim.
Being aggrieved by and/or dissatisfied with the said order dated 28.12.2016 an appeal has been preferred by the assessee before the first appellate authority. Before the said appeal taken up by the Ld CIT(A) order u/s 263 passed by the Ld PCIT was quashed by the Hon’ble ITAT in assessee’s appeal. The said fact was made known to the first appellate authority in the said appeal. Since the very basis of the said order of reassessment being the order u/s 263 exercising revisional jurisdiction for framing reassessment passed by the Learned PCIT-I has been quashed by and under the order dated 16.03.2017 passed in ITA No.2713/Ahd/2015 for Asst. Year 2009-10, the Learned CIT(A) dismissed the said appeal preferred by the assessee treating it as infructuous. Hence, the instant appeal before us by the Revenue.
We have heard the Learned Representative of the assessee who has narrated the above facts before us and a copy of the order passed by the Hon’ble Tribunal has also been handed over to us. However, the Ld DR could not rebut the same. Since the very
- 3 - ITA No.303/Ahd/2018 JCIT(OSD) vs. Cadila Healthcare Ltd Asst.Year – 2009-10
basis of the order impugned before us being the order for framing assessment by the AO passed by the Learned PCIT-1 has been quashed by the Co-ordinate Bench the appeal preferred by the assessee before the Ld CIT(A) became infructuous as rightly held by the Ld CIT(A). We, therefore, find no merit in the instant appeal preferred by the Revenue. Thus, the appeal is dismissed.
In the result, revenue’s appeal is dismissed. This Order pronounced in Open Court on 29/11/2018
Sd/- Sd/- ( PRAMOD KUMAR ) ( Ms. MADHUMITA ROY ) ACCOUNTANT MEMBER JUDICIAL MEMBER
Ahmedabad; Dated 29/11/2018 Priti Yadav, Sr.PS
आदेश क� ��त�ल�प अ�े�षत/Copy of the Order forwarded to : 1. अपीलाथ� / The Appellant 2. ��यथ� / The Respondent. 3. संबं�धत आयकर आयु�त / Concerned CIT 4. आयकर आयु�त(अपील) / The CIT(A)-1, Ahmedabad. �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण, अहमदाबाद / DR, ITAT, Ahmedabad 5. 6. गाड� फाईल / Guard file. आदेशानुसार/ BY ORDER, स�या�पत ��त //True Copy// उप/सहायक पंजीकार (Dy./Asstt.Registrar) आयकर अपील�य अ�धकरण, अहमदाबाद / ITAT, Ahmedabad
Date of dictation 15/11/2018 (dictation pages 4) 2. Date on which the typed draft is placed before the Dictating Member 16/11/2018 3. Other Member… 4. Date on which the approved draft comes to the Sr.P.S./P.S 5. Date on which the fair order is placed before the Dictating Member for pronouncement… 6. Date on which the fair order comes back to the Sr.P.S./P.S……. 7. Date on which the file goes to the Bench Clerk………………… 8. Date on which the file goes to the Head Clerk…………………………………... 9. The date on which the file goes to the Assistant Registrar for signature on the order…………………….. 10. Date of Despatch of the Order………………