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

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ITA 1675/KOL/2018Status: DisposedITAT Kolkata05 September 2018AY 2012-132 pages

In favour of the assessee: the Revenue's appeal was dismissed. From the AI summary of this appeal.

AI SummaryDismissed

What did the Tribunal hold?

The Tribunal held that since the foundational Section 263 order was quashed, the consequential AO's order giving effect to it was null and void. Therefore, the revenue's appeal was dismissed.

What were the facts?

The Assessing Officer (AO) passed an order giving effect to a previous order by the Commissioner of Income-tax (CIT) under Section 263. The assessee challenged this order before the CIT(A). Crucially, the Tribunal had previously quashed the CIT's Section 263 order.

What were the issues?

The primary issue was the validity of an AO's order that was based on a CIT's order which was subsequently quashed by the Tribunal.

Which sections of the Income-tax Act were involved?

Section 263

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, “C” BENCH: KOLKATA

Before: Shri A. T. Varkey, JM & Dr. A. L. Saini, AM]

Hearing: 30.08.2018Pronounced: 05.09.2018

This appeal preferred by the revenue is against the order of the Ld. CIT(A)-22, Kolkata dated 10.05.2018 for AY 2012-13.

2.

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.

Shri Hartaj Sewa Singh, AY 2012-13

3.

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.

4.

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

Order pronounced in the open court on 5th September, 2018. Sd/- Sd/- (Dr. A. L. Saini) (A. T. Varkey) Accountant Member Judicial Member Dated: 5th September, 2018 Jd.(Sr.P.S.) Copy of the order forwarded to:

1 Appellant – ACIT (IT), Circle-1(1), Kolkata. 2 Respondent – Shri Hartaj Sewa Singh, Mews III, 1C Tivoli Court, Ballygunge Circular Road, BeckBagan, Kolkata-700 019. 3 CIT(A)-22, Kolkata. (sent through e-mail) CIT , Kolkata 4 DR, Kolkata Benches, Kolkata (sent through e-mail) 5

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