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2015 (9) TMI 1703 - AT - Income TaxRevision u/s 263 - HELD THAT - We find that the order of the CIT made u/s. 263 of the Act was appealed by the assessee before the Tribunal and the Tribunal 2014 (12) TMI 1370 - ITAT MUMBAI has held the revision proceedings infirm and illegal and consequentially restored the regular assessment dated 31.10.2009. Sublato fundamento cadit opus meaning thereby that in case the foundation is removed,super structure falls. In the present case also the foundation i.e. order made u/s. 263 has been removed by the Tribunal in ITA No.23/Mum/2012, hence the structure i.e. the assessment made u/s. 143(3) r.w.s 263 of the Act falls. Hence, the appeal filed by the assessee becomes otiose.
Issues:
1. Appeal against order of CIT(A)-13, Mumbai for A Y 2007-08 made under section 143(3) r. w. s. 263 of the Act. Analysis: The appeal before the Appellate Tribunal ITAT Mumbai was against the order of the CIT(A)-13, Mumbai, dated 23.12.2013, related to the assessment year 2007-08, which was made under section 143(3) read with section 263 of the Income Tax Act. The Tribunal noted that the original assessment order was set aside by the CIT invoking the powers under section 263 of the Act. The Tribunal further observed that the order of the CIT under section 263 was challenged by the assessee before the Tribunal, and in a previous proceeding (ITA No.23/Mum/2012), the Tribunal had found the revision proceedings to be infirm and illegal. Consequently, the Tribunal had restored the regular assessment dated 31.10.2009. The Tribunal emphasized the principle of "Sublato fundamento cadit opus," which means that if the foundation is removed, the superstructure falls. In this context, the Tribunal pointed out that the foundation, represented by the order made under section 263, was removed by its previous order in ITA No.23/Mum/2012. Therefore, the Tribunal concluded that the assessment made under section 143(3) read with section 263 of the Act could not stand without the foundation provided by the CIT's order under section 263. Consequently, the appeal filed by the assessee was deemed otiose. In conclusion, the Appellate Tribunal ITAT Mumbai, comprising Shri NK Billaiya, AM, and Shri Sanjay Garg, JM, pronounced the order on 28th September 2015, stating that the appeal by the assessee against the order of the CIT(A)-13, Mumbai, for the assessment year 2007-08 made under section 143(3) read with section 263 of the Act was dismissed as the foundation for the assessment had been removed by a previous order of the Tribunal.
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