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Income Tax Appellate Tribunal, “C” BENCH : KOLKATA
Before: Hon’ble Sri N.V.Vasudevan, JM & Shri M.Balaganesh, AM]
Date of Hearing : 20.11.2017. Date of Pronouncement : 22.11.2017. ORDER Per N.V.Vasudevan, JM
This is an appeal by the Revenue against the order dated.30.05.2014 of. C.I.T.(A)-Central-II, Kolkata relating to A.Y. 2008-09. 2. Grounds of appeal raised by the revenue read as follows :-
1. That on the facts and circumstances of the case and in law, the Ld (IT (A) has erred in law in deleting the addition u/s.68 of the IT Act Act on account of share capital amounting to Rs.38.87 crores without appreciating the fact that the mode of payment cannot be sacrosanct for treating a bogus transaction as a genuine one as the principle laid down by the judicial decision like (IT - VS. - Precison Finance Pvt. Ltd. [208 ITR 465 (Cal)] and Nizam Wool Agency 193 ITR 318 (All).
2. That on the facts and circumstances of the case and in law, the Ld (IT (A) has erred in law in deleting the addition u/s.68 of the IT Act Act on account of share capital amounting to Rs.38.87 crores without appreciating the fact that the circumstances surrounding the transactions proved the transactions to be bogus.
3. That the Departmen1 craves leave to add, modify or alter any of the grounds of appeal and/or adduce additional evidence at the time of hearing of the case. “
Ramshila Enterprises Pvt. Ltd. A.Y.2008-09 2
The Assessee is a company. An order of assessment u/s 143(3) r.w.s.144 of the Income Tax Act, 1961 (Act) dated 21.05.2010 determining the total income of the assessee at Rs.20,447/- against the retuned income of Rs.Nil was passed by the AO. The CIT-Kolkata-II, Kolkata passed an order u/s 263 of the Act dated 26.03.2013 setting aside the order of assessment dated 21.05.2010 for fresh adjudication by the AO with certain directions. Against the aforesaid order of CIT passed u/s 263 of the Act dated 26.03.2013 the assessee preferred an appeal before the Hon’ble Tribunal. The Tribunal vide its order dated 30.07.2015 confirmed the order of CIT(A).
The AO in pursuance of the order dated 26.03.2013 based on CIT u/s 263 of the Act passed an order of assessment dated 31.10.2014 u/s 147/143(3)/263. Against the addition made in the aforesaid order of assessment the assessee preferred appeal before CIT(A). The CIT(A) by the impugned order deleted the addition made by the AO. Against the aforesaid order of CIT(A) the revenue is in appeal before the Tribunal.
At the time of hearing of the appeal it was brought to the notice that as against the order of the Tribunal dated 30.07.2015 upholding the order dated 26.03.2013 passed u/s 263 of the Act, the assesse preferred an appeal before the Hon’ble Calcutta High Court. The Hon’ble Calcutta High Court in G.A.No.3929 of 2015 in of 2015 judgement dated 08.03.2016 reported in 383 ITR 546(Cal) was pleased to reverse the order of the Tribunal and quash the order u/s 263 of the Act. In view of the decision of the Hon’ble Calcutta High Court quashing the order u/s.263 of the Act, the very basis on which the present proceedings commenced namely the order u/s 263 of the Act is no longer in existence, the order of assessment dated 31.03.2014 is hereby annulled. Since the order of assessment is annulled the other proceedings including the proceedings culminating from passing of the impugned order will have no legs to stand. The appeal of the revenue is therefore dismissed as infractuous. Ramshila Enterprises Pvt. Ltd. A.Y.2008-09 3
In the result the appeal by the revenue is dismissed.