Joginder Singh, J.M:— The Revenue is aggrieved by the impugned order dated 23/07/2012 of the ld. First Appellate Authority, Mumbai, on the ground whether the ld. Commissioner of Income tax (Appeals) was justified in canceling the order passed by the Assessing Officer u/s 143(3) r.w.s 263 of the Act without appreciating the fact that the order of the Tribunal dated 21/03/2012, relied by the ld. Commissioner of Income tax (Appeals), has been challenged before the Hon'ble Bombay High Court and the same is pending.
2. At the time of hearing, the ld. Counsel for the assessee, Shri Nitish Gandhi, at the outset, claimed that the order of the Tribunal has been affirmed by Hon'ble Bombay High Court vide order dated 15/01/2012 (ITA (L) No. 1242 of 2012). The copy of the order from Hon'ble High Court was placed on record by the ld. Counsel. This factual matrix was not controverted by Shri Love Kumar, ld. DR, however, he advanced his arguments which are identical to the ground raised.
2.1 We have considered the rival submissions and perused the material available on record. Without going into much deliberation, we note that, subsequent to order u/s 263, passed by the ld. Commissioner, the assessee filed appeal before the Tribunal, wherein, vide order dated 21/03/2012, the Tribunal in ITA No. 3495.Mum/2011 allowed the appeal of the assessee canceling the order of the ld. Commissioner, which was later on affirmed by the Hon'ble jurisdictional High Court vide order dated 15/01/2013 (ITA (L.) No. 1242 of 2012). Thus, the ground raised by the Revenue that the Department has challenged the order of the Tribunal is automatically answered, therefore, the appeal of the Revenue is dismissed.
Finally the appeal of the Revenue is dismissed.