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Income Tax Appellate Tribunal, “D” BENCH, MUMBAI
Before: SHRI SAKTIJIT DEY & SHRI M. BALAGANESH
The captioned appeal by the Revenue is directed against the order dated 18th June 2018, passed by the learned Commissioner of Income Tax (Appeals)–3, Mumbai, for the assessment year 2009–10.
Brief facts are, for the impugned assessment year the assessee company filed its return of income on 30th September 2009, declaring total income at nil after claiming loss. The assessment in case of the assessee was completed under section 143(3) of the Act vide order
2 Quikjet Cargo Airlines Pvt. Ltd. dated 23rd December 2011, determining the loss at ` 34,21,63,504, under the normal provisions of the Act after disallowing certain expenditure under section 37(1) of the Act. The assessment order so passed was subjected to proceedings under section 263 of the Act and ultimately learned Commissioner of Income Tax, in exercise of power under section 263 of the Act, set aside the assessment order with a direction to the Assessing Officer to make de novo assessment after conducting appropriate enquiry. In pursuance to the directions of learned Commissioner of Income Tax, the Assessing Officer passed the assessment order under section 143(3) r/w section 263 of the Act on 9th February 2015, determining the loss at ` 21,87,81,648, under the normal provisions of the Act. Against the assessment order so passed, the assessee preferred appeal before the first appellate authority.
During the appeal proceedings, learned Commissioner (Appeals) found that while disposing off the appeal filed by the assessee contesting the order passed under section 263 of the Act, the Tribunal has quashed the order passed under section 263 of the Act and restored the original assessment order. Accordingly, he quashed the assessment order passed u/s 143(3) r/w section 263 of the Act.
When the appeal was called for hearing, no one was present on behalf of the assessee to represent the case. There is no application by the assessee seeking adjournment either. Therefore, we proceed to 3 Quikjet Cargo Airlines Pvt. Ltd.
dispose off the appeal ex–parte qua the assessee after hearing the learned Departmental Representative and on the basis of material available on record.
We have heard the learned Departmental Representative and perused the material on record. Undisputedly, the assessment order under challenge before learned Commissioner (Appeals) was passed under section 143(3) r/w section 263 of the Act in pursuance to the directions of learned Commissioner of Income Tax under section 263 of the Act. Uncontroverted facts are, against the order passed under section 263 of the Act, the assessee had preferred appeal before the Tribunal and the Tribunal vide order dated 15th February 2017, has quashed the order passed under section 263 of the Act. Thus, once the order passed under section 263 of the Act has been quashed, all proceedings in pursuance to such order would have no validity. Therefore, the assessment order passed under section 143(3) r/w section 263 of the Act, would have no locus standi. That being the case, learned Commissioner (Appeals) has correctly held that the assessment order so passed is void ab initio, hence, has to be quashed. There being no infirmity in the aforesaid decision of learned Commissioner (Appeals), we uphold the same by dismissing the grounds raised. Mere filing of appeal before the Hon’ble High Court
4 Quikjet Cargo Airlines Pvt. Ltd. challenging the decision of the Tribunal would not make the order inoperative.
In the result, Revenue’s appeal is dismissed. Order pronounced in the open Court on 31.01.2020