If the order under sec 263 does not survive than the assessment order made under that sec also not survive

IN THE INCOME TAX APPELLATE TRIBUNAL

DELHI BENCH ‘B’: NEW DELHI

BEFORE SHRI G.D.AGRAWAL, VICE PRESIDENT AND

SHRI I.P.BANSAL, JUDICIAL MEMBER

ITA No.683/Del/2012

Assessment Year: 2005-06

Deputy Commissioner of Income Tax,

Circle-11(1), New Delhi.

(Appellant)

Vs.

M/s Eastern India Powertech Ltd.,

(Formerly known as DLF Power Ltd.),

DLF Galleria, 12th Floor,

Phase-V, DLF City,

Gurgaon – 122 002.

PAN: AAACD0187C.

 (Respondent)

Appellant by: Shri S.Krishna, CIT-DR.

Respondent by: Shri Amit Sachdeva, Advocate.

ORDER

PER G.D.AGRAWAL, VP:

This appeal by the Revenue is directed against the order of learned CIT(A)-XIII, New Delhi dated 16th November, 2011.

2. The only ground raised by the Revenue reads as under:-

“On the facts and circumstances of the case and in law, the ld.CIT(A) has erred in quashing the order passed by AO u/s 263/143(3) of the I.T.Act, 1961.”

3. We have heard both the sides and perused the material placed before us. The facts of the case are that the impugned appeal has originated from the assessment order dated 28.12.2010 which was passed by the Assessing Officer in pursuance to the order under Section 263 passed by the CIT, Delhi-IV vide order dated 31.12.2009. On appeal, the ITAT in ITA No.678/Del/2010 quashed the order passed under Section 263. In view of the above, the CIT(A) quashed the assessment order dated 28.12.2010 which was passed by the Assessing Officer in pursuance to the order under Section 263. The Revenue, aggrieved with the order of the CIT(A), is in appeal before us.

4. In the meanwhile, the Revenue had filed appeal before the Hon’ble Jurisdictional High Court in which their Lordships, vide order dated 29th November, 2011, in ITA No.973/2011, held as under:-

“12. In view of the aforesaid, we answer the question of law framed above in negative i.e. in favour of the Revenue and against the assessee. The CIT will pass a fresh order under Section 263 of the Act after hearing the assessee. The contentions and issues raised by the assessee will be dealt with by the CIT. He shall also examine whether the issue in question was raised before the Assessing Officer and considered and verified or the course adopted is permissible. If this is correct, then his jurisdiction will be ascribed and limited to the extent of deciding whether the finding is erroneous i.e. contrary to law etc. In the facts of the case, there will be no order as to costs. Appeal is disposed of.”

5. Thus, the Hon’ble Jurisdictional High Court modified the order of the ITAT and, instead of order under Section 263 having been quashed by the ITAT, set aside the matter back to the file of the CIT for passing the fresh order under Section 263. However, the fact remains that at present the order under Section 263 passed by the CIT dated 31.12.2009 does not survive because it has been set aside by the Hon’ble Jurisdictional High Court and the matter is restored back to the file of the CIT for passing a fresh order. Thus, when the order under Section 263 dated 31.12.2009 does not survive, the assessment order dated 28.12.2010 passed in pursuance to the order under Section 263 dated 31.12.2009 cannot survive. We, therefore, hold that learned CIT(A) was justified in quashing the assessment order dated 28.12.2010. However, before we part with the matter, we may clarify that the Assessing Officer will be at liberty to pass the fresh assessment order in accordance with law in pursuance to the fresh order passed under Section 263, if so advised.

6. In the result, the appeal of the Revenue is dismissed.

Decision pronounced in the open Court on 17th April, 2012.

                                                     Sd/-                                Sd/-

                                           (I.P.BANSAL)           (G.D.AGRAWAL)

                                       JUDICIAL MEMBER   VICE PRESIDENT

Dated: 17.04.2012

VK.

Copy forwarded to: -

1. Appellant

2. Respondent

3. CIT

4. CIT (A)

5. DR, ITAT

Assistant Registrar