SIEMENS LTD,MUMBAI vs. DCIT CIR 8(2)(1), MUMBAI

आदेश / O R D E R Per Sandeep Gosain, Judicial Member: These two appeals have been filed by the assessee against the order of Commissioner of Income Tax (Appeals)-14,Mumbai dated 23.10.15 for AY 2003-04.

ITA No. 5657/M/15 for AY 2003-04. 3. First of all we take up assessee’s appeal in for AY 2003-04 on the ground mentioned herein below:- 1. The CIT(A) erred in dismissing the Appellant's appeal as infructuous on the ground that CIT by his Order dated 24.03.2010 passed under section 263 of the Act had set aside the assessment order giving rise to the appeal.

He failed to appreciate that the Appellant has filed an appeal against the CIT's Order dated 24.03.2010 before the Tribunal and the present appeal would become relevant if the Tribunal allows the Appellant's appeal.

He erred in not adjudicating the said grounds of appeal.

3 & 5658/Mum/2015 Siemens Ltd 3. The Appellant craves leave to add, alter, amend or withdraw all or any of the grounds of appeal hereinabove and to submit such statements, documents and papers as may be considered necessary either at or before the hearing of appeal as per law.

4. The brief facts of the case are that the order of assessment passed by the Assessing Officer for the years under consideration u/s. 143(3) read with section 245D(4) of the Act was revised by the principa1 CIT(A) by invoking provisions of section 263 of the Act. Hence learned CIT(A) dismissed the appeal on the legal ground that the impugned assessment orders no longer exists in the eyes of law, since the same has been set aside by the Ld. CIT u/s. 263 of the Act. Accordingly he held that the appeal has become infructuous.

5. Aggrieved by the order of Ld. CIT(A), assessee filed the present appeal before us. 6. The sole ground raised

by the assessee is against challenging the order of Ld. CIT(A) in dismissing the assessee's appeal as infructuous on the ground that CIT by his Order dated 4 & 5658/Mum/2015 Siemens Ltd 24.03.2010 passed under section 263 of the Act had set aside the assessment order giving rise to the appeal.

7. Ld. AR appearing on behalf of the assessee submitted before us that the assessee has also challenged the revision order passed by Ld. CIT u/s 263 of the Act by filing appeal before the Hon’ble Tribunal. It was further submitted that since the appeal has been filed by the assessee challenging the revision order, therefore the dismissal of the appeal filed by the assessee on a legal ground is pre-mature. Ld. AR further submitted that the identical ground has already been decided by the Coordinate Bench of Hon’ble ITAT in ITA No. 5660 & 5659/M/15 for AY 2001-02 & 2002-03 respectively in assessee’s own case. The relevant portion of the said order is reproduced below:-

4. We have heard learned Departmental Representative and perused the record. Since the assessee has filed the appeals challenging revision order passed by learned CIT(A), we are of the view that there is merit in the submissions of the assessee. There is no doubt that the orders passed by Ld ClT(A) on the legal ground is legally correct. However, since the assessee bas challenged the revision orders by filing appeals before the Tribunal, we are of the view 5 I.T.A. No. 5657 & 5658/Mum/2015 Siemens Ltd that there is merit in the submissions of the assessee. Since the validity of revision order would depend upon the outcome of the appeals filed before the Tribunal, we are of the view that the disposal of the impugned appeals was premature. Accordingly, we set aside the impugned orders passed by learned CIT(A) and restore them to his file with the direction to dispose of the appeals after receipt of orders passed by the Tribunal against the appeals filed by the assessee challenging the revision orders

I.T.A. No. 5658/Mum/2015 (AY 2004-05) 11. Now we take up assessee’s appeal in (AY 2004-05). Since, we have already decided the identical grounds raised in this appeal, in the aforementioned appeal bearing AY 2003-04 in assessee’s own case and restored the matter back to the file of Ld. CIT(A) with a direction to dispose of the appeal after receipt of order passed by the Tribunal against the appeal filed by the assessee challenging the revision order Therefore, following our own decision in the aforementioned appeal, we apply the same findings in the present appeal which are applicable mutatis mutandis in the case of the assessee.