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Income Tax Appellate Tribunal, “F”
Before: SHRI PAWAN SINGH, JM & SHRI S. RIFAUR RAHMAN, AM
M/s Fedex Express ACIT Cir 9(3)(1), Transportation & Supply 2nd floor, R. No. 2nd floor, Chain Services India Pvt. Aayakar Bhavan, M. K. बिधम/ Ltd, Boomerang, 801, A- Road, Mumbai-400 020 wing, Chandivali Farm Vs. Road, Near Chandivali Studio, Andheri(east), Mumbai-400072 स्थायीलेखासं./जीआइआरसं./PAN No. AABCF6516A (अपीलाथी/Appellant) (प्रत्यथी / Respondent) : अपीलाथीकीओरसे/ Appellant : Smt. Samtha Mullamudi, DR by प्रत्यथीकीओरसे/Respondentby : Shri Arpit Agrawal, AR सुनवाईकीतारीख/ : 20.02.2020 Date of Hearing घोषणाकीतारीख / : 06.03.2020 Date of Pronouncement आदेश / O R D E R
Per S. Rifaur Rahman, Accountant Member:
1. The present Appeal has been filed by the revenue against the order of Ld. Commissioner of Income Tax (Appeals) – 16 in M/s Fedex Express Transportation & Supply Chain Services India Pvt. Ltd short referred as ‘Ld. CIT(A)’, Mumbai, dated 24.12.18 for Assessment Year (in short AY) 2011-12.
2. The brief facts of the case are that assessee company filed its return of income for A.Y. 2011-12 on 30.09.2011, declaring total loss of Rs. 13,12,13,466/- and subsequently filed a revised return declaring total loss of Rs. 62,71,22,057/- on 21.11.2012. The case was selected for scrutiny and an order u/s 143(3) of the I.T. Act was passed on 18.03.2014 determining total loss of Rs. 62,70,56,154/- by making addition of Rs. 65,903/- on account of undisclosed TDS. Further, Ld. Pr.CIT-9 Mumbai has passed as order u/s. 263 of the I.T. Act, 1961 on 21.02.2016. Later, the AO has passed an order u/s 143(3) r.w.s. 263 of the Act dated 30.12.2016 and made disallowance of depreciation on goodwill amounting to Rs. 37,12,56,443/- and disallowance on non- compete fees amounting to Rs. 2,50,86,078/ and addition of Rs.65,903/- on account of undisclosed TDS.
3. Aggrieved with the above order, assessee preferred appeal before Ld. CIT(A) and Ld. CIT(A), after considering the submission of the assessee, deleted the disallowance made by M/s Fedex Express Transportation & Supply Chain Services India Pvt. Ltd AO and allowed the appeal of the assessee with the following observations:-
I have carefully perused the assessment order and the submissions made by the AR in support of his arguments. After taking into consideration, the A.O's findings and the appellant's oral and written submissions made during the course of hearing as well as facts of the case, decision on various grounds are adjudicated as under:
6.1. Since the Hon'ble IT AT has set aside / quashed the order u/s.263 passed by Pr.CIT-9, the order passed by A.O. u/s. 143(3) r.w.s. 263 in response to the directions issued u/s.263 by Pr.CIT-9 is no more a valid order. Hence order passed by A.O. u/s. 143(3) r.w.s. 263 does not survive. Therefore, respectfully following the judgement of Hon'ble ITAT in for A.Y.2011-12 dated 17.11.2017, the appeal of the appellant is allowed.
Aggrieved with the above order, revenue has preferred the appeal before us on the ground mentioned herein below:-
Whether the Ld. CIT(A) is correct in law by referring to the findings of AO in original assessment M/s Fedex Express Transportation & Supply Chain Services India Pvt. Ltd order and not considering the findings in the assessment order u/s.143(3) rws 263 after setting aside the original assessment by Ld. PCIT in which valuation of goodwill and depreciation attributable to the assessee was restricted to 25% of claim amount.
Whether on the facts and in the circumstances of the case, the Ld. CIT(A) was justified in law in not appreciating the fact that decision of Hon'ble ITAT has not been accepted by the revenue and further appeal has been preferred before the Hon'ble High Court, which is pending as on date.
The appellant prays that the order of the Ld. CIT(A) on the above ground be set aside and that the AO be restored.
4. The appellant craves leave to amend or alter any grounds or add a new ground which may be necessary.
Before us, Ld. DR submitted that Ld. CIT(A) is not correct in law by referring to the findings of AO in original assessment order and not considering the findings in the assessment order u/s. 143(3) r.w.s 263 after setting aside the original assessment by Ld. PCIT in which valuation of goodwill and depreciation attributable to the assessee was restricted to 25% of claim M/s Fedex Express Transportation & Supply Chain Services India Pvt. Ltd amount. He further submitted that Ld. CIT(A) was not justified in law in not appreciating the fact that decision of Hon'ble ITAT has not been accepted by the revenue and further appeal has been preferred before the Hon'ble High Court, which is pending as on date. Lastly, he prayed that the above ground be set aside and that the AO be restored.
6. On the other hand, Ld. AR supported the orders passed by Ld. CIT(A).
Considered the rival submissions and material placed on record, we notice from the record that since the Coordinate Bench of ITAT has set aside / quashed the order u/s. 263 of the Act passed by Pr. CIT, the order passed by A.O. u/s. 143(3) r.w.s. 263 in response to the directions issued u/s. 263 by Pr. CIT is no more a valid order. Hence order passed by A.O. u/s. 143(3) r.w.s. 263 does not survive. Therefore, we are of the considered view that Ld. CIT(A) has rightly allowed the appeal of the assessee by respectfully following the decision of Coordinate Bench of ITAT in for A.Y.2011-12. Accordingly, grounds raised by the revenue are dismissed.