BIBHUTI B. DASGUPTA (HUF),MUMBAI vs. AC9T 19(1), MUMBAI

The only issue in this appeal of assessee is against the order of CIT(A) confirming the action of the AO in refusing to rectify the error in regard to enhancement of sale consideration from ₹ 19.51 crores to ₹ 19.92 crores. For this assessee has raised the following ground No. 2: -

At the outset, the learned Counsel for the assessee stated the facts that the assessee filed its return of income for A.Y. 2009-10 on 20.08.2009 declaring income of Rs. 17,46,41,557/-. The case of the Assessee was selected for scrutiny and order was passed under section 143(3) of the Act on 26.12.2011 by making addition of Rs.93,83,585/- to long term capital gains and assessing the income of the Assessee at Rs. 18,40,25,162/-. The Assessee preferred an appeal before the CIT(A) on 11.01.2012 against the order under section 143(3) of the Act passed by the A.O. During the pendency of appeal before the CIT(A), show cause notice u/s 263 dated 15.05.2012 was issued by the CIT and subsequently, order was passed u/s 263 of the Act on 23.07.2012 by setting aside the order of A.O dated 26.12.2011 passed u/s 143(3) of the Act and directing the A.O to pass fresh order. Against this order, the Assessee preferred an appeal before the Tribunal, being in /M/2012. The CIT(A) dismissed the appeal filed against original assessment order vide order dated 11.02.2013 by considering it as infructuous on the ground that the assessment had already been set aside u/s 263 by the Administrative Commissioner on this issue. Against this, the Assessee filed appeal before the Tribunal on 02.08.2012 being ITA No. 1435/M/2014. The AO, then, passed order under section 143(3) r.w.s 263 on 21.03.2014 giving effect to the order of the CIT under section 263 of the Act by enhancing the assessed income to Rs. 21,02,96,393/-. The Assessee filed rectification application dated 26.03.2014 before the A.O. requesting to rectify certain mistakes apparent in the order dated 21.03.2014 passed under section 143(3) r.w.s 263 of the Act. The A.O rejected the rectification application and passed order on 25.09.2014 under section 154 of the Act. The Assessee preferred an appeal before the CIT(A) against the order u/s 154 of the Act. The CIT(A) vide order dated 06.02.2017 partly confirmed the action of the AO. The Assessee preferred an appeal before the Tribunal against the said order, being ITA No. 3584/M/2017, which is the present appeal. In the meantime, both the earlier appeals, against the CIT(A) order in original assessment and against the order u/s 263 were consolidated for hearing before the Tribunal. The Tribunal quashed and set aside the order u/s 263 vide order dated 05.02.2018 (in ITA No. 5129/M/2012) and set aside the CIT(A) order passed under section 250 of the Act (in ITA No. 1435/M/2014).

Under the circumstances, since the appeal against the order under section 263 has been allowed by the Tribunal, quashing the order under section 263, the order under section 143(3) r.w.s 263 does not survive. In turn, the present appeal before the Tribunal emanating from the order under section 154 of the Act against such assessment order will become infructuous and academic and dismissed.

In the result, the appeal of assessee is dismissed.