M/S CONCRETE DEVELOPERS,NAGPUR vs. ACIT,C(C)-2(2), NAGPUR

This appeal by the assessee against the order dated 28-09-2018 passed by the Pr. Commissioner of Income Tax (Central), Nagpur u/s. 263 of the Act for assessment year 2009-10.

We note that the issue raised in this appeal is as to whether the Pr. CIT exercised his jurisdiction u/s. 263 of the Act and held the assessment order dated 21-12-2010 passed u/s. 143(3) of the Act as erroneous and prejudicial to the interest of Revenue.

On perusal of the record, we note that the above said assessment was reopened u/s. 147 of the Act by taking prior approval of Pr. CIT. In pursuance of the same, a notice u/s. 148 of the Act was issued and in response to which the assessee requested to AO to treat the original return filed on 26-09-2009. The AO accordingly basing on the seized impounded material as Annexure B-3, B-2, B-7 and B-8 along with cash book, individual ledger accounts and ledger account of labour charges showing the expenditure mentioned in Annexure B-2, B-3, B-7 and B-8, held the submissions of the assessee are in order, accepted return of income and reassessment order dated 31-12-2016 was passed u/s. 143(3) r.w.s. 148 of the Act.

Coming to the impugned order, we note that the issues as found by the Pr. CIT for initiation of 263 proceedings are same as the issues considered in reassessment proceedings which is evident from para 2 of the impugned order. Further, the Pr. CIT without considering the same, invoked revision jurisdiction on the assessment order dated 26-09-2009 passed u/s. 143(3) of the Act which is not in existence at the time of exercising jurisdiction u/s. 263 of the Act in view of reassessment order dated 31-12-2016. Therefore, the very initiation of 263 proceedings on the assessment order dated 26-09-2009 passed u/s. 143(3) of the Act which is not in existence, is bad under law. Thus, the order dated 28-09-2018 passed by the Pr. CIT u/s. 263 of the Act is bad under law and it is quashed.

In view of our decision in quashing the order of Pr. CIT passed u/s. 263 of the Act, the ground Nos. 1 to 3 raised by the assessee become academic, requiring no adjudication.

In the result, the appeal of assessee is allowed.