TMI Blog2018 (5) TMI 2083X X X X Extracts X X X X X X X X Extracts X X X X ..... e ground that the consequential order passed u/s 143(3)/263 of the Act is not maintainable and thus the appeal filed becomes infructuous - Decided against revenue. - I.T.A. No.2528/Ahd/2016 - - - Dated:- 24-5-2018 - SHRI WASEEM AHMED, ACCOUNTANT MEMBER And SHRI MAHAVIR PRASAD, JUDICIAL MEMBER For The Appellant : Shri T. Sankar Sr. D.R. For The Respondent : Shri S. N. Divatia, A.R. ORDER PER WASEEM AHMED, ACCOUNTANT MEMBER: The captioned appeal has been filed at the instance of the Revenue against the appellate order of the Commissioner of Income Tax(Appeals)-1, Ahmedabad [CIT(A) in short] vide appeal no.CIT(A)-1/DCIT, Cir-1(1)(2)/57/2015-16 dated 28/07/2016 arising in the assessment order passed under s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 143(3)/263 of the Act dated 11-3-2015. On the other hand, Ld. DR vehemently relied on the order of Assessing Officer. 5. We have heard the rival contentions of both the parties and perused the material available on record. In the instant case, there is no ambiguity that the order passed by Ld. CIT u/s 263 of the Act in the case of assessee pertaining to assessment year 2009-10 was quashed in ITA No. 1279/AHD/2014 vide order dated 19.02.2016. The relevant extract of the order is reproduced below:- 7. We have carefully considered the rival submissions. The first thing which has to be considered is whether the ld. Commissioner has rightly assumed the power u/s. 263 of the Act. The Hon ble Supreme Court in Malabar In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be claimed u/s. 35D after commencement of business as per provisions applicable for A.Y. 2009-10. We find that the Gujarat Pollution Control Board has given consent and authorization treating the assessee an Industrial Undertaking. Further we find that this view is also supported by the decision of the Hon ble Kerala High Court in the case of P.Alikunju, M.A. Nazeer Cashew Industries 166 ITR 804. It would be pertinent to mention here, the observations of the Hon ble Bombay High Court in the case of Ship Scrap Traders 251 ITR 806 wherein the Hon ble High Court has observed as under:- The concept of industrial undertaking need not necessarily be confined to manufacture and production of articles and even in the absence of either of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disallowance u/s. 14A amounting to ₹ 8,80,758/-. Considering the details, the disallowance offered by the assessee during the assessment proceedings is accepted and a disallowance of ₹ 8,80, 758/- is made u/s. 14A . From the above, it can be seen that that the A.O. has thoroughly examined the source of investment and after examination/verification , the A.O was convinced that the investment is out of interest free funds. 13. In the light of the above, it cannot be said that there is any wrong assumption of fact. 14. Having said all that, in our considered opinion neither there is any wrong assumption of law nor there isany wrong assumption of facts to make the assessment order erroneous and pre-judicial to the inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allowed. From the above proposition, there remains no doubt that the order passed by Ld. CIT u/s 263 of the Act was held as unsustainable. Therefore, the order passed in consequent to the direction issued u/s 263 of the Act becomes infructuous. Hence, we find no reason to interfere in the order passed by the ld. CIT(A) on the ground that the consequential order passed u/s 143(3)/263 of the Act is not maintainable and thus the appeal filed becomes infructuous. Hence the additions made by the AO in his giving effect order are not sustainable. Thus we dismiss the appeal filed by the Revenue. 6. In the result, Revenue s appeal stands dismissed. This Order pronounced in Open Court on 24/05/2018 - - TaxTMI - TMITax - In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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