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Income Tax Appellate Tribunal, “C” BENCH: KOLKATA
Before: Shri A. T. Varkey, JM & Dr. A.L. Saini, AM]
ORDER Per Shri A.T.Varkey, JM:
These are appeals preferred by the Revenue against the order of the CIT(A)-3, Kolkata dated 13.11.2018 u/s 250 of the Income Tax Act, 1961 (hereinafter ‘the Act’) for Assessment Years (hereinafter ‘AY’) 2007-08, 2008-09 and 2009-10 respectively.
The grounds of appeal for AY 2007-08 is considered as the lead case and the result of it will be followed for the remaining two assessment years filed before us. The grounds are as follows:
“(a) Whether the CIT(A) is justified in facts and in law to allow the appeal of appeal against the revision assessment order of the Assessing Officer dated 29.01.2016 on the mere ground that the Hon'ble ITAT vide its order dated 06.04.2016 had allowed the appeal of the assessee and set aside the order passed by the Ld.Pr.CIT-3,Kolkata on 30.03.2015 and notverifying the facts and circumstances of the case? (b) Whether the CIT(A) is justified in facts and in law to declare the impugned revision assessment order of the Assessing Officer dated 29.01.2016 as non-est without considering the facts of the case based on its merit? (c) Whether the CIT(A) is justified in facts and in law to declare the impugned revision assessment order of the Assessing Officer dated 29.01.2016 as non-est and is justified
2 714 & 715/Kol/2019 AYs: 2007-08 to 2008-09 & 2011-12 Apeejay Shipping Limited. allowing the appeal of assessee against order u/s.263 in technical ground without justifying the legislative intention of sec.H5JB & 115JAA? (d) That the department craves leave to add, alter or modify any grounds of appeal in the course of Appellate-proceedings.”
3. From the reading of the aforesaid grounds of appeal of the Revenue itself it is clear that the AO has passed the reassessment order on 29.01.2016 pursuant to the revisional order of ld. Ld. Pr. CIT-3, Kolkata, passed u/s 263 of the Act dated 30.03.2015. Meanwhile it is also noted that the assessee had preferred an appeal challenging the revisional order of ld. Pr. CIT-3 dated 30.03.2015 before this Tribunal; and the Tribunal was pleased to set aside the revisional order of the ld. Pr. CIT on 06.04.2016. Consequently the order of the AO passed giving effect to the ld. Pr. CIT’s order dated 30.03.2015 became ab-initio-void and resultantly non-est in the eyes of law. The principle applicable is based on legal maxim “Sublato Fundamento Credit Opus” meaning, in case a foundation is removed, the superstructure falls. In the case of Badrinath vs Government Of Tamil Nadu And Ors. AIR 2000 SC 3243 Hon’ble Supreme Court held that once the basis of a proceeding is gone, all consequential orders and acts would fall on the ground automatically which is applicable to judicial/quasi-judicial proceedings. Turning back to the case in hand, the AO has passed the order dated 29.01.2016 by giving effect to the order of the ld. Pr. CIT dated 30.03.2015 and when that order of the ld. Pr. CIT has been set aside by the Tribunal by order dated 06.04.2016, the foundation of the AO’s order dated 29.01.2016 has been removed and therefore all consequential action falls and therefore the ld. CIT(A) rightly allowed the appeal of the assessee and therefore we are inclined to uphold the order of the ld. CIT(A) and dismiss all the appeals of the Revenue.
In the result, the appeals of the Revenue are dismissed.
Order is pronounced in the open court on 20th December, 2019.