GIGABYTE TECHNOLOGY (INDIA) PVT. LTD.,NAVI MUMBAI vs. ASST. COMMISSIONER OF INCOME TAX CIR. 1, MARGAO

आयकरअपील सं./ (िनधा"रण वष" / Assessment Year: 2006-07) Gigabyte Technology (India) ACIT-1, Pvt. Ltd. Margo, Goa बनाम/ B-411, BSEL Tech Park Sector 30A, Vashi Vs. Navi Mumbai, Maharashtra – 400 705 "थायीलेखासं./जीआइआरसं./PAN/GIR No. AABCD-7556-N (अपीलाथ"/Appellant) (""थ" / Respondent) : Assessee by : Shri Vishal Kalra-Ld. AR Revenue by : Shri Sunil Deshpande-Ld. DR सुनवाई की तारीख/ : 20/07/2021 Date of Hearing घोषणा की तारीख / : 20/07/2021 Date of Pronouncement आदेश / O R D E R Manoj Kumar Aggarwal (Accountant Member) 1. In this appeal, the assessee has aggrieved by certain additions as made in assessment order dated 07/10/2013 passed u/s 143(3) r.w.s. 263 of the Act.

Ld. AR submitted that this order has been passed consequent to invocation of revisional jurisdiction u/s 263 by learned Commissioner of Income Tax on 20/03/2012. In the said order, Ld. CIT(A) set aside the assessment order dated 18/12/2009 passed u/s 143(3) with a direction to Ld. AO to pass speaking draft assessment order in terms of the provisions of Sec.144C of the Act.

The Ld. AR further submitted that the assessee contested the validity of jurisdiction u/s 263 before Panaji Bench of Tribunal which was dismissed on 13/10/2014. However, the assessee preferred further appeal against the said order before Hon’ble Bombay High Court vide of 2015 which was disposed-off on 19/10/2020. The Hon’ble High Court decided the appeal in favor of the assessee by setting aside the order passed by Ld. CIT u/s 263. The relevant observations are as under: - 45. According to us, the issue is whether the assessment order dated 18-12-2009 in this case, is void ab initio or not. Going by the decisions in Zuari Cement Ltd. (supra), Control Risk India (P.) Ltd. (supra); International Air Transport Association; Lionbridge Technologies (P.) Ltd. (supra) and Vijay Television (P.) Ltd. (supra), we have to hold that the assessment order dated 18-12-2009, in the present case, was clearly without jurisdiction and, therefore, null and void or void ab initio. The fact that the Assessee, in this case, may have not instituted a Writ Petition to challenge the same, but has instituted only an appeal challenging the same, can make no difference to the legal position which is otherwise quite clear. This was not a case where the assessee was merely throwing some collateral challenge to the assessment order dated 18-12-2009. The assessee had frontally challenged this order by instituting an appeal against the same. Therefore, all these decisions could not have been ignored by the ITAT by merely observing that these were the decisions in Writ Petitions instituted by the Assessees.

For all the aforesaid reasons, the two substantial questions of law will have to be answered in favour of the assessee and against the revenue. Further, the order dated 23-2-2012 made by the CIT in the purported exercise of jurisdiction under section 263 of the said Act, is liable to be set aside. Since this order has merged into the order of the ITAT dated 31-10-2014, even this impugned order made by the ITAT is required to be set aside.