ROHIT DEVIDAS NADKANI,BANDA vs. PR COMMISSIONER OF INCOME-TAX, KOLHAPUR

This appeal by the assessee against the order dated 03-02-2020 passed by the Pr. Commissioner of Income Tax, Kolhapur [‘PCIT’] for assessment year 2011-12.

We find that this appeal was filed with a delay of 280 days. Upon hearing both the parties, we find that the reasons explained by the ld. AR are bonafide which really prevented the assessee to file the appeal in time. Therefore, the delay of 280 days are condoned.

The only issue is to be decided is as to whether the order of PCIT is justified in setting aside the assessment order dated 28-12-2017 passed u/s. 143(3) r.w.s. 147 of the Act without appreciating that the relevant assessment order which did not survive as on the date of passing the impugned order u/s. 263 of the Act.

We note that the PCIT exercised its jurisdiction u/s. 263 of the Act on the assessment order which was completed on 28-12-2017 u/s. 143(3) r.w.s. 147 of the Act. The contention of ld. AR is that the said reassessment order was set aside by the CIT(A) in quantum proceedings vide order dated 03-10-2018 and argued that no order as such existing as on date of passing of 263 order by the PCIT. We note that the CIT(A) passed quantum appeal order dated 03-10-2018 wherein he allowed relief to the assessee by holding that the reopening of assessment is bad under law by taking support from the decision of Hon’ble Supreme Court in the case of Kelvinator of India Ltd. (2010) 187 Taxman 312 (SC). There is no dispute that the impugned order u/s. 263 was passed on 03-02-2020 whereas the quantum appeal was disposed off by the CIT(A) on 03-10- 2018. Therefore, we find force in the arguments of ld. AR that no order existing as on the exercise of revision jurisdiction u/s. 263 of the Act by the PCIT. Therefore, the impugned order dated 03-02-2020 passed by the PCIT is not maintainable and it is set aside. Thus, the grounds raised by the assessee are allowed.

In the result, the appeal of assessee is allowed.