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Income Tax Appellate Tribunal, DELHI BENCH: ‘E’ NEW DELHI
Before: SHRI G.D. AGARWAL & SHRI K.NARASIMHA CHARY
PER K. NARASIMHA CHARY, JM Aggrieved by the order dated 24th of August 2015 in appeal No. 40/13-14 passed by the learned Commissioner of Income Tax (Appeals)-XXVI, New Delhi (for short “Ld. CIT(A)”) assessee preferred this appeal. 2. Brief facts of the case for the disposal of this appeal are that there was search under section 132(1) of the Income-tax Act, 1961 (for short “the Act”) on 29th of April 2008, as a consequence of which assessment was complete under section 153A/143(3) of the Act vide order dated 31/12/2010. An addition of Rs.30 crores was made in such order. Subsequently, there was another search in the case of Lalit Modi on 19.6.2009 on the basis of which proceedings under section 153C were initiated, and concluded by the order dated 29/12/2011 by way of which learned Ld. AO adopted the same income as was computed in the assessment order dated 31st December 2010.
Subsequently the appeal against the assessment order under section 153C/143(3) of the Act was disposed of by the Ld. CIT(A) Vide order dated 21st November, 2013 granting relief to the assessee. Such findings of the Ld. CIT(A) were confirmed by a coordinate bench of this tribunal by order dated 18 August, 2017 in ITA No. 1007/Del/2014.
However, when the appeal preferred by the assessee against the order under section 153A/143(3) of the Act came up for consideration before the Ld. CIT(A), Ld. CIT(A) dismissed the same holding it to be infructuous. Hence this appeal by the assessee stating that the Ld. CIT(A) should have treated the assessment under section 153A/143(3) of the Act as infructuous instead of appeal as there cannot be two assessments for the same year.
It is the argument of the Ld. AR that there cannot be two assessment orders for the same year. The assessment under section 153A/143(3) of the Act dated 31st of December 2010, therefore, was merged with a subsequent assessment under section 153C/143(3) of the Act by order dated 29th of December 2011. In this situation, the assessment order dated 31st of December 2010 cannot survive, as such, the Ld. CIT(A) should have considered the assessment under section 153A/143(3) of the Act as infructuous and not the appeal itself.
This argument of the Ld. AR appears to be sound and there is no dispute on this preposition that there cannot be two assessment orders in force at a time for the same assessment year. We, therefore, while accepting the argument of the Ld. AR hold that it was not the appeal against the order dated 31/12/2010 that was infructuous but it was the assessment order dated 31/12/2010 itself that was infructuous. In this situation, while holding the order dated 31/12/2010 as infructuous having been merged with the subsequent order dated 29th of December 2011 under section 153C/143(3) of the Act, we allow the appeal of the assessee.