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Income Tax Appellate Tribunal, AHMEDABAD “B” BENCH
Before: SHRI N.K. BILLAIYA & SHRI MAHAVIR PRASAD
PER N.K. BILLAIYA, ACCOUNTANT MEMBER:
This appeal by the Revenue is directed against the order of the Ld. CIT(A)-3, Ahmedabad dated 06.10.2015 pertaining to A.Y. 2007-08.
ITA No. 3506/Ahd/2015 2 . A.Y. 2007-08 2. The grievance of the revenue read as under:- "The Id, CIT(A) has erred in law and on facts in allowing the appeal of the assessee merely on the ground that the Hon'ble ITAT has set-aside the order u/s 263 of the Act passing by the Hon'ble CIT without going into the merit in respect of the addition of Rs.43,28,51,653/- made by the Assessing Officer treating the expenditure claimed of Option premium payment - Hedge under the head "Exchange Rate Difference" as speculative transaction.”
Briefly stated the facts of the case are that the assessment order framed u/s. 143(3) of the Act vide order dated 21.02.2011 was set aside by the Commissioner by assuming power u/s. 263 of the Act vide order dated 22.03.2013. That order of the Commissioner was challenged before the Tribunal and the Tribunal through third member vide order dated 07.08.2015 in ITA No. 1474/Ahd/2013 has quashed the order of the CIT framed u/s. 263 of the Act. The relevant finding of the third member read as under;- “ I relying upon the decisions of Hon’ble Apex Court in the case of Malabar Industrial Co. Ltd. (supra), Hon’ble Jurisdictional High Court in the cases of Amit Corpn (supra) and Friends and Friends Shipping (P.) Ltd. (supra), hold that the ld. Commissioner of Income-tax was not justified in invoking the provisions of section 263 of the Income-tax Act, 1961. Accordingly, the question referred to me is answered in negative, i.e., in favour of the assessee.”
Since the very basis of the present assessment order was removed by the Tribunal, the super structure that is the assessment order dated 21.11.2013 framed u/s. 143(3) r.w.s. 263 of the Act becomes non-est.
ITA No. 3506/Ahd/2015 3 . A.Y. 2007-08 5. On the aforementioned facts, we do not find any error or infirmity in the findings of the ld. CIT(A). Appeal filed by the Revenue is accordingly dismissed.
Order pronounced in Open Court on 16 - 01- 2018
Sd/- Sd/- (MAHAVIR PRASAD) (N. K. BILLAIYA) JUDICIAL MEMBER True Copy ACCOUNTANT MEMBER Ahmedabad: Dated 16/01/2018 Rajesh Copy of the Order forwarded to:- 1. The Appellant. 2. The Respondent. 3. The CIT (Appeals) – 4. The CIT concerned. 5. The DR., ITAT, Ahmedabad. 6. Guard File. By ORDER
Deputy/Asstt.Registrar ITAT,Ahmedabad