ITO WD 14(2)(2), MUMBAI vs. LUPIN INVESTMENTS P.LTD, MUMBAI

सुनवाई की तायीख / Date of Hearing : 18.07.2016 घोषणा की तायीख /Date of Pronouncement : 18.07.2016 आदेश / O R D E R

PER D. KARUNAKARA RAO, AM:

2. On the facts and in the circumstances of the case and in law, the Ld CIT (A) erred in cancelling the assessment order u/s 143(3) r.w.s 263 of the IT Act, 1961 relying on the order quashing the order u/s 263 is being contested further.”

3. At the outset, Ld Counsel for the assessee briefly narrated the facts of the case and brought our attention to the order of the Tribunal in (AY 2007-2008), dated 03.06.2015, copy of which is placed on record and mentioned that vide the said order, the Tribunal quashed the revision order dated 29.02.2012 of the CIT-10, passed u/s 263 of the Act. Therefore, considering the said Tribunal‟s order (supra), the fresh assessment order made u/s 143(3) r.w.s 263 of the Act, dated 28.3.2013 becomes infructuous. Further, bringing our attention to the order of the CIT (A)-22, Mumbai dated 18.8.2015, Ld Counsel for the assessee mentioned that vide 4.1 of his order, CIT (A) cancelled the impugned assessment order relying on the said Tribunal‟s decision dated 3.6.2016 (supra) and therefore, the said decision CIT (A) need not be altered.

4. After hearing both the parties and on perusal of the said Tribunal‟s order (supra), dated 17.02.2016 as well as the decision of the CIT (A) in general and para 4.1 in particular, we find the said decision of the CIT (A) is relevant here. Considering the significance of the said para 4.1 of the CIT (A)‟s order and for the sake of completeness of this order, the same is extracted as under:- “4.1. During the appeal proceedings, the appellant through it‟s A/R submitted that it has received a favourable order from ITAT in respect of the appeal filed against the order passed by the Commissioner u/s 263 of the Act. A copy of the said order dated 3.6.2015 of ITAT, Mumbai „A‟ Bench in was also submitted. Perusal of the Hon‟ble Tribunal‟s order shows the appellant had challenged the order u/s 263 passed by the Commissioner taking inter alia in its grounds of appeal

the issue of wrong assumption of jurisdiction u/s 263 by the Commissioner as well as other grounds on merits. It is seen that the Tribunal has decided the matter in favour of the appellant. The impugned order passed u/s 143(3) r.w.s 263 of the Act, dated 28.3.2013, therefore, does not survive as it was passed consequent to the order u/s 263 of the Act passed by the Commissioner which has been quashed by the ITAT. As on date, there is nothing on record to indicate that the ITAT‟s order dated 3.6.2015 has been modified / overruled / reversed by a high appellate authority. Respectfully, following the order of the Hon‟ ble Tribunal, the impugned assessment order dated 28.3.2013 is hereby cancelled without adjudicating on the merits of the grounds of appeal.”

5. From the above, it is clear that the CIT (A) relied on the decision of the Tribunal vide its order dated 3.6.2015 (supra), wherein the Tribunal quashed the revision order of the CIT. In that case, the fresh assessment order made by the AO u/s 143(3) r.w.s 263 does not have legs to stand. Considering this fact, CIT (A) cancelled the said fresh assessment order of the AO. Therefore, in our opinion, the decision taken by the CIT (A) is fair and reasonable and it does not call for any interference. Consequently, the appeal filed by the Revenue is required to be dismissed as infructuous.