ACIT(IT), CIRCLE - 1(1), KOLKATA, KOLKATA vs. SHRI HARTAJ SEWA SINGH, KOLKATA

At the outset itself, it has been brought to our notice by the Ld. Counsel for the assessee that pursuant to an order of Ld. CIT(IT&TP), Kolkata passed u/s. 263 of the Income-tax Act, 1961 (hereinafter referred to as the “Act”) dated 30.03.2017 the AO has passed the giving effect order on 27.12.2017 which has been challenged by the assessee before the Ld. CIT(A), which is the impugned order before us. And it was brought to our notice that the order of the Ld. CIT(IT & TP), Kolkata dated 30.03.2017 has been quashed by the Tribunal vide order dated 27.04.2018. Therefore, the AO’s order giving effect to the order of the Ld. CIT is null in the eyes of law. According to Ld. AR, the Ld. CIT(A) has taken note of this fact and has given relief to the assessee. The Ld. DR could not contradict this fact before us.

We have heard rival submissions and gone through the facts and circumstances of the case. We note that the AO’s order is pursuant to the order of Ld. CIT passed u/s/. 263 of the Act dated 30.03.2017 which has been quashed by the Tribunal vide its order dated 27.04.2018. Therefore, when foundation is removed the super structure falls. Therefore, the case of assessee is squarely covered by the legal maxim "Sublato Fundamento Credit Opus" meaning in case foundation is removed, the super structure falls. In Badrinath Vs. Tamilnad AIR 2006 SC 3243 wherein the Hon'ble Supreme Court held that once the basis of proceeding is gone, all consequential order and acts would fall on the ground automatically which is applicable to judicial and quasi judicial proceedings. Therefore, since the revisional order passed u/s. 263 order of the Ld. CIT has been quashed by the Tribunal, the AO's order giving effect to the 263 order is' null' and, therefore is non-est in the eyes of law. Therefore, the appeal of revenue does not survive and is, therefore, dismissed for the reasons discussed above.

In the result, the appeal by the Revenue is dismissed.