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TMI Blog2010 (11) TMI 682X X X X Extracts X X X X X X X X Extracts X X X X ..... ding that since the regular appeal has already been preferred this appeal has factually become infructuous. - I.T.A. No. 232 of 2006 - - - Dated:- 12-11-2010 - Justice Kalyan Jyoti Sengupta, Justice Kanchan Chakraborty, JJ. K.J.Sengupta, J.:- The above appeal was preferred by the appellant against the judgment and order dated 10th February 2006 passed by the Income Tax Appellate Tribunal (D) Bench, Calcutta in ITA (SS) No. 185 Col/ 2004 in the block assessment years 1996-97 to 2001-02 in so far as the same relate to reconsideration of taxability or otherwise of the sum of Rs. 254,32,93,100 received by the appellant on March 1, 2006. Thus it appears that the appeal is preferred against portion of the judgment and order of the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -96 to 2001-02. Accordingly a notice was issued on 6th September 2004 asking the assessee to explain receipt of the said amount and also gave chance of personal hearing. Pursuant thereto, the assessee duly appeared and made submission. The sum and substance of the assessee s case before the CIT was that Assessing Officer had looked into and examined all the books of accounts and documents seized during search period and therefore, there was no occasion to ignore any taxable income. The CIT did not accept such explanation and having invoked his power under Section 263 cancelled the assessment and directed the Assessing Officer to make fresh assessment after examining the cash transaction recorded in seized document KP-19. The learned Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roneous and also prejudicial to the interest of the revenue are satisfied. In the present case the loss has been accepted by CIT (Appeal) on the basis of the audit report prepared in trial balance. The same view has also been accepted by the Tribunal and Tribunal did not raise the question that the audit report which referred to KP-19 which included only the said chit paper, was not acceptable nor reliable. The learned Tribunal affirmed the order of CIT or even in the High Court above question which was raised was not accepted for consideration while dismissing appeal under Section 260A of the Act. In that view of the matter view taken by the CIT (Appeal) as also by the learned Tribunal and ultimately by the High Court by necessary impl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 263 of the said Act is without jurisdiction. In this context he has strongly relied on the decision of the Supreme Court in case of Calcutta Discount Company reported in 41 ITR 191. Lastly he concludes that if it is found that order of the CIT under Section 263 is without jurisdiction, consequential order passed on this subject taken in the mean time by the Department was automatically be invalid and void and the same can be set aside. The learned Counsel for the respondent highlighting the fact, as recorded above submits that the fact of the case would make it clear that the Assessing Officer in his order although had proposed to treat the aforesaid account as unexplained cash and added the same to the income of the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... found ultimately the order of the Commissioner under Section 263 of the said Act was passed without the twin conditions being satisfied, and further steps taken pursuant thereto by the department has to be declared being null and void, consequently order passed by the Assessing Officer will stand set aside and it would become automatically infructuous. His contention is based on the decision of Supreme Court in Calcutta Discount case. We are of the view that Calcutta Discount case is not applicable on the facts and circumstances of this case as in that case factually the notice under Section 34 of the Income Tax Act 1922 corresponding to Section 263 of the present Act was challenged filing Writ Petition under Article 226 of the Constitution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he provision of the appeal is very exhaustive and all points can be taken including the question of jurisdiction as taken here. We feel that considering all the aspects of the matter no decision should be rendered as if we do not accept contention of Dr. Pal, the appeal preferred by his client against subsequent order of assessment will have to be heard on merit and in that case the question of jurisdiction cannot be raised. In the event if we do not decide then all points can be decided obviously by the appellate forum. We therefore, dispose of the present appeal keeping all points open holding that since the regular appeal has already been preferred this appeal has factually become infructuous. There will be no order as to costs. - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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