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Income Tax Appellate Tribunal, “C” BENCH: KOLKATA
Before: Shri P.M. Jagtap & Shri A. T. Varkey, JM]
ORDER
Per Shri A.T.Varkey, JM
1. This appeal has been filed by the assessee against the order of Ld. CIT(A)-15, Kolkata dated 22.02.2017 for AY 2007-08 on the following grounds:
For that on the facts of the case, the order passed by the Ld. C.I.T.(A) is completely arbitrary, unjustified and illegal.
For that on the facts of the case, the Ld. C.I.T.(A) was wrong in dittoing the order of the A.O. and confirming the addition amounting to Rs.21,52,291/- u/s. 41(1) as cessation of liability which is completely arbitrary, unjustified and illegal. 3. For that on the facts and in the circumstances of the case, the Ld. C.I.T.(A) ought to have considered the facts that the assessee had discharged its onus by furnishing all the relevant documents in connection with the Advertisement expenses, Repair & Maintenance and also proved the identity and creditworthiness and genuineness of Sundry creditors, therefore, the Ld. C.IT.(A) may be directed to delete the addition amounting to Rs.21,52,291/- made u/s. 41(1) of the I.T. Act. 4. For that on the facts of the case, the Ld. C.I.T.(A) was wrong in confirming the addition u/s. 40a(ia) of the I.T. Act amounting to Rs.22,448/ - regarding payment of advertisement as the assessee was not liable to deduct TDS on payment made to advertisement, therefore, the order passed by the Ld. CIT(A) is completely arbitrary, unjustified and illegal. 5. For that on the facts of the case, the Ld. C.I.T.(A) was wrong in holding that the assessee was covered by explanation III to Section 194C(2) of the Income Tax Act, therefore, the Smt. Madhu Chhanda Sirkar, AY- 2007-08 disallowance made u/s. 40a(ia) amounting to Rs.22,448/- by the Ld. CIT(A) is completely arbitrary, unjustified and illegal.
For that the appellant reserves the right to adduce any further ground or grounds, if necessary, at or before the hearing of the appeal.”
2. At the outset itself, it has been brought to our notice that the assessee had filed her return of income on 09.10.2007 for AY 2007-08 reflecting her income at Rs.7,33,724/-. Later, the case was picked up for scrutiny assessment u/s. 143(3) of the Income-tax Act, 1961 (hereinafter referred to as the “Act”) and assessment was framed on 31.12.2009 (hereinafter called as the ‘Original Scrutiny Assessment’). Against the said order of the AO, the assessee preferred an appeal before the Ld. CIT(A) which was decided by the Ld. CIT(A) on 30.06.2011 by giving partial relief to the assessee. Against the order of the Ld. CIT(A) both the assessee as well as the revenue appealed before the Tribunal which was disposed of by the Tribunal vide order dated 26.09.2018. After the assessee’s appeal before the Ld. CIT(A) was decided on 30.06.2011, the Ld. CIT, Kol-XVII invoked his revisional jurisdiction u/s. 263 of the Act and set aside the order of the AO passed in the Original Scrutiny Assessment dated 31.12.2009 by an order dated 17.02.2012 wherein the Ld. CIT directed the AO to frame fresh assessment. We note that the AO has given effect to the Ld. CIT’s 263 order on 07.03.2013 which was challenged by the assessee before the Ld. CIT(A), who passed the impugned order before us dated 22.02.2017. It was brought to our notice that the assessee had challenged the invocation of revisional jurisdiction by the Ld. CIT u/s. 263 of the Act before this Tribunal. And the Tribunal was pleased to quash the Ld. CIT’s order passed u/s. 263 of the Act dated 17.02.2012 vide order dated 26.09.2018. We note that the impugned order before us is the order of the Ld. CIT(A) on the giving effect order passed by the AO pursuant to sec. 263 order of the Ld. CIT dated 17.02.2012. We note that since the Ld. CIT’s order u/s. 263 of the Act dated 17.02.2012 has been quashed by the Tribunal vide order dated 26.09.2018 then question of any order of the AO giving effect does not arise. So, the appeal also on a non-est order of AO is also null in the eyes of law. Therefore, we find that the order impugned before us is arising
Smt. Madhu Chhanda Sirkar, AY- 2007-08 from a non-est order of the AO and, therefore, the impugned order is null in the eyes of law and, therefore, quashed.
In view of the aforesaid, we are of the considered opinion that the order impugned before us is arising from a non-est order of the AO and, therefore, the impugned order of Ld. CIT(A) is null in the eyes of law and, therefore, quashed. Therefore, appeal of assessee is allowed.
In the result, appeal of assessee is allowed.
Order is pronounced in the open court on 8thMarch, 2019 Sd/- sd/- (P. M. Jagtap) (Aby. T. Varkey) Vice President Judicial Member
Dated : 8th March, 2019 Jd.(Sr.P.S.) Copy of the order forwarded to:
1. Appellant – Smt. Madhu Chhanda Sirkar, Prop. M/s. M. C. Sirkar & Sons, AE-336, Salt Lake City, Kolkata-700 064. Respondent – ACIT, Circle-50, Kolkata. 2 3. CIT(A)-15, Kolkata (sent through e-mail) CIT- , Kolkata. 4.
DR, ITAT, Kolkata. (sent through e-mail)