IN THE INCOME TAX APPELALTE TRIBUNAL : JODHPUR BENCH : JODHPUR

BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND

SHRI N.K. SAINI, ACCOUNTANT MEMBER.

ITA No.149/Jodh/2014

(A.Y. 2007-08)

ITO, Ward-1,

Sriganganagar.

Vs. Shri Gagandeep Kathuria,

Prop. Shivam Property Dealer,

Khichi Chowk, Sriganganagar.

(Appellant)

PAN No. AMJPK 6483 A

(Respondent)

Assessee by : Shri Suresh Ojha.

Department By : Shri Jai Singh - D.R.

Date of hearing : 26/08/2014.

Date of pronouncement : 09/09/2014.

O R D E R

PER N.K. SAINI, A.M

This is an appeal by the department against the order dated

20/12/2013 of Ld. CIT(A), Bikaner. The only ground raised in this appeal

reads as under:

“On the facts and in the circumstances of the case, the Ld. CIT(A) has erred in accepting the appeal of the assessee on the basis of order passed by the Hon'ble ITAT against the order u/s. 263 of CIT, even though the department has filed further appeal u/s. 260A before the Hon'ble High Court against the said order of ITAT.”

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2 From a bare reading of the aforesaid ground of appeal, it would be

clear that the Department has challenged the order of the Ld. CIT(A) only

for this reason that the order of the ITAT followed by the Ld. CIT(A) has

been challenged before the Hon'ble High Court, however, nothing is

brought on record to substantiate that the said order of the ITAT has

been set aside or reversed. On that score alone, this appeal deserves to

the dismissed.

3. However, we want to discuss the facts of this case which in brief

are that a survey u/s. 133A of the I.T. Act, 1961 (hereinafter referred to

as ‘the Act’ in short) was conducted at the business premises of the

assessee and the assessment was framed u/s. 143(3) of the Act on

21/12/2009. After completion of the assessment, the Ld. CIT, Bikaner

took an action u/s. 263 of the Act and set aside the assessment order vide

order dated 31/10/2011 u/s. 263 of the Act and the matter was restored

back to the Assessing Officer for making assessment denovo. The

Assessing Officer, completed the assessment vide order dated 28/09/2012

and made the additions u/s. 69 of the Act amounting to Rs. 6,60,033/-

and u/s. 68 of the Act amounting to Rs. 13,15,000/-. Another addition of

Rs. 2,50,000/- was made u/s. 69 of the Act. In making the above

additions, the Assessing Officer followed the direction of the Ld. CIT,

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Bikaner, given as per the order dated 31/10/2011 passed u/s. 263 of the

Act.

4. Being aggrieved, the assessee carried the matter to the ld. CIT(A)

and submitted that the order of the Ld. CIT passed u/s. 263 of the Act on

the basis of which, the assessment had been reopened and completed,

was set aside by the ITAT in I.T.A.No. 06/Jodh/2012 vide order dated

13/04/2013. Therefore, the addition made by the Assessing Officer on

the basis of order u/s. 263 of the Act deserves to be deleted.

5. The learned CIT(A), after considering the submissions of the

assessee, observed that the order of the Ld. CIT, Bikaner passed u/s. 263

of the Act itself was declared as illegal and against the law by the ITAT

and the original order of the Assessing Officer was held neither erroneous

nor prejudicial to the interest of the Revenue. Therefore, the order

passed by the Assessing Officer in pursuance of the order u/s. 263 of the

Act automatically becomes infructuous and illegal. Now the Department

is in appeal.

6. We have considered the submissions of both the parties and

carefully gone through the material available on record. In the present

case, it is an admitted fact that the order passed by the Ld. CIT, Bikaner

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u/s. 263 of the Act (on the basis of which the present assessment had

been framed by the Assessing Officer vide order dated 28/09/2012) has

been set aside by the ITAT vide order dated 30/04/2013 in I.T.A.No.

06/Jodh/2012. Therefore, the subsequent order dated 28/09/2012

passed by the Assessing Officer on the direction of the Ld. CIT, Bikaner

given in the order dated 31/10/2011 u/s. 263 of the Act is not

maintainable and automatically becomes infructuous. In that view of the

matter, we do not see any infirmity in the order of the Ld. CIT(A) and

accordingly, do not see any merit in this appeal of the Department.

7. In the result, appeal of the Department is dismissed.

(Order Pronounced in the Court on 09th September, 2014).

Sd/- sd/-

(HARI OM MARATHA) (N.K.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER

Dated : 09th September, 2014.

vr/- Copy to:

1. The Appellant 2. The Respondent 3. The ld.CIT 4. The CIT(A) 5. The D.R

Sr. Private Secretary, ITAT, Jodhpur.