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Income Tax Appellate Tribunal, DELHI BENCH: ‘E’ NEW DELHI
Before: SHRI G.D.AGRAWAL & SHRI K.NARASIMHA CHARY
ORDER PER K NARASIMHA CHARY Aggrieved by the order dated 29thMay 2015 in appeal No. 409/14-15 passed by the learned Commissioner of Income Tax (Appeals)-7 (for short “Ld. CIT(A)”) dismissing the appeal of the assessee, assessee preferred this appeal. 2. Brief facts of the case are that the assessee filed their return of income on 31/10/2005 for the Assessment Year 2005-06 declaring nil income under normal provisions of the Income tax Act, 1961 and Rs.1,22,82,570/- under section 115 JB of the Act along with audited copies of balance sheet, profit and loss account, tax audit report as prescribed under section 44 AB and 115 JB of the Act. Case was processed under section 143(1) of the Act and thereafter the assessment u/s 143(3) of the Act was completed by order dated 23/5/2007 at returned income. Subsequently proceedings under section 263 of the Act were initiated against the assessee. By way of order dated 25th of March 2009 learned Commissioner of income tax-V, Delhi directed the learned AO to make an addition of Rs.72,07,020/-. Ld. AO complied with the same by order dated 29/7/2009.
Against the order dated 29/7/2009 under section 263/143(3) of the Act, assessee preferred an appeal before the Ld. CIT(A) and the Ld. CIT(A) by way of impugned order dismissed the same. Hence the assessee is before us in this appeal.
At the outset, it is brought to our notice that the order dated 25/3/2009 under section 263 of the Act passed by the learned Commissioner of income tax has been quashed by a coordinate bench of this tribunal in by order dated 06/6/2017. It is further submitted that the appeal of the revenue against the orders of the tribunal before the Hon’ble High Court of Delhi in ITA No. 95/2018 was dismissed by the High Court by order dated 30/1/2018. Both the orders are produced before us and we have gone through the same. There cannot be any dispute as to these facts which are brought to our notice. Since the very basis for the addition involved in this matter, that is, the order under section 263 of the Act is no longer in existence, the addition cannot survive. We, accordingly, recording the said fact allow the appeal of the assessee and quash the assessment order dated 29/7/2009.
Appeal of the assessee is, accordingly, allowed.