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2022 (12) TMI 1425 - ITAT DELHIRevision u/s 263 against company dissolved/ non-existing - assessment in the hands of the representative/agent - Who may be regarded as agent u/s 163? - whether the CIT has power to pass an order u/s 163 of the Act? - HELD THAT:- As per provisions of section 163 it does not show the authority as to who can pass the order u/s 163 of the Act. Though section 246 of the Act which contains the provisions relating to the appealable orders before the CIT at clause (d) which mentions “An order made u/s 163 of the Act treating the assessee as agent of the non agent” which means that the order u/s 163 of the Act is to be passed by an authority below the rank of a commissioner, because if the commissioner passes the order, then it cannot be appealed against before the ld. CIT(A). Section 253 of the Act contains the provisions relating to appeals to the appellate Tribunal and in the said section, there is mention of all orders passed under different sections of the Act which are appealable before the appellate Tribunal but there is no mention of order passed u/s 163 of the Act, which means that the commissioner has no power to pass an order u/s 163 of the Act. Though the ld. DR had vehemently stated that the commissioner has concurrent jurisdiction/powers as that of the Assessing Officer, but in light of the aforesaid discussion, we do not find any merit in this contention of the ld. DR. In light of the provisions of section 163 considered in light of the aforementioned discussion, order passed u/s 163 of the Act by the CIT, International-2 deserves to be quashed and treated as nonest. The ld. CIT assumed jurisdiction u/s 263 of the Act on the basis of order passed u/s 163 of the Act. Since the very basis [order u/s 163 of the Act] has been removed, the super structure i.e. order u/s 263 of the Act must fall. Original assessment against company[Non resident] now dissolved - As there is no dispute that the Assessing Officer framed assessment u/s 143(3) of the Act in the case of Monet Limited in the status of non-resident. In our considered opinion and understanding of law, since the principal has been assessed to tax than for the same income, there cannot be a separate assessment in the hands of the representative/agent, when the alleged representative/agent are also non-residents. Principal Monet Limited has been extinguished. Then how can there be representative /agent of non-existing company. Provisions of section 163 of the Act are not akin to that of section 159 wherein a legal heir is substituted in place of a deceased assessee. This answers the third issue raised by Shri Pardiwalla. CIT, International Taxation-2 passed an order u/s 163 of the Act without having any such authority and thereafter, wrongly assumed jurisdiction u/s 263 of the Act treating Cairnhill CIPEF Limited and Cairnhill CGPE Limited as representative /agent of Monet Limited which extinguished on 19.12.2018 and framed the impugned orders which do not have any support /backing of any provisions of the Act. Assessee appeal allowed.
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