NEW TEA COMPANY LIMITED,KOLKATA vs. PCIT - 2, KOLKATA, KOLKATA

This appeal preferred by the assessee is against the order of the Ld. CIT(A)-2, Kolkata dated 13.07.2017 for AY 2012-13.

At the outset itself, it has been brought to our notice by the Ld. Counsel for the assessee that the original assessment in this case was completed by the AO on 31.03.2015 against which the assessee preferred an appeal before the Ld. CIT(A) who has passed this impugned order on 13.07.2017 which is under challenge before us. However, it was brought to our notice that when the appeal was pending before the Ld. CIT(A) against the original assessment order dated 31.03.2015, the Ld. CIT invoked his revisional jurisdiction u/s. 263 of the Income-tax Act, 1961 (hereinafter referred to as the “Act”) and set aside the order of the AO and directed him to de novo assess vide order dated 30.03.2017. Therefore, according to Ld. Counsel for the assessee, once the order of the AO in the original assessment dated 31.03.2015 have been cancelled and de novo assessment has been directed to be framed, the appeal preferred by the assessee against the original order of assessment dated 31.03.2015 is null in the eyes of law, and, therefore, the order passed by the Ld. CIT(A) dated 13.07.2017 is also null in the eyes of law. The aforesaid facts stated by the New Tea Company Ltd., AY 2012-13 Ld. AR could not be controverted by the Ld. CIT, DR. Therefore, we agree with the contention raised by the Ld. AR that the original assessment passed by the AO on 31.03.2015 against which the assessee had preferred an appeal before the Ld. CIT(A) and the consequent order passed by the dated 13.07.2017 is null in the eyes of law. The reason for coming to such a conclusion is that we note that the original assessment dated 31.03.2015 framed by AO has been cancelled by Ld. CIT and de novo assessment has been ordered by the Ld. CIT u/s. 263 of the Act and subsequently the AO has given effect to the said order of the Ld. CIT by reiterating the very same addition/disallowance once again by an assessment order dated 15.06.2017. In such a scenario, the legal effect is that the original assessment order dated 31.03.2015 of the AO is non-existing in the eyes of law after the order of Ld. CIT passed u/s. 263 of the Act and, therefore, the appeal of the assessee against the original assessment dated 31.03.2015 becomes non est in the eyes of law. Since there is no assessment order existing which is to be adjudicated by the Ld. CIT(A) in the first appellate jurisdiction and, therefore, the order of the Ld. CIT(A) dated 13.07.2017 on a non-existing assessment order of AO is also null in the eyes of law and, therefore, we quash the order of the Ld. CIT(A) dated 13.07.2015. The appeal of the assessee is allowed.

In the result, appeal of assessee is allowed. Order is pronounced in the open court on 8thMarch, 2019. Sd/- sd/- (Dr. A. L. Saini) (A. T. Varkey) Accountant Member Judicial Member Jd.(Sr.P.S.) Dated: 8th March, 2019 Copy of the order forwarded to: 1 Appellant – New Tea Company Ltd., Hindusthan Building, 2nd floor, 4, C. R. Avenue, Kolkata-700 001. 2 Respondent – Pr. C.I.T -2, Kolkata. 3 CIT(A)-2, Kolkata (sent through e-mail)