BASUDEB DAS,SOUTH 24 PARGANAS V. I.T.O., WARD - 26(1), KOLKATA, KOLKATA

ITA 1308/KOL/2024

AI Insights

The case involves an appeal by Basudeb Das against the order of the CIT(A), National Faceless Appeal Centre, Delhi, for the Assessment Year 2017-2018. The primary contention was the validity of the notice issued under section 143(2) of the Income Tax Act, 1961, by the Assessing Officer, which allegedly did not specify the type of scrutiny under which the assessee's case was selected. Additionally, it was argued that the notice did not comply with the CBDT's instructions regarding the issuance of such notices. The Tribunal admitted the additional legal ground raised by the assessee and decided the appeal based on this ground, leading to the quashing of the assessment order.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 126439 (ITAT-KOLKATA)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-04-2025
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2017-2018
• Other Referred Cases: National Thermal Power Co. Ltd. Vs. CIT, Lavanya Estates Pvt. Ltd. vs. ITO, Shri Rudraprasad Mondal vs. DCIT, Dev Milk Foods Pvt. Ltd. vs. Addl. CIT, Sukhdham Infrastructure LLP vs. ITO
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MADHUMITA DAS
• Assessee Lawyers: SOUMITRA CHOUDHURY
• Keywords: National Faceless Appeal; HRA; Department
• Section: 143(2)

Judgement Text

" आयकर अपीलीय अधिकरण,“एस.एम.सी” न्यायपीठ,कोलकाता IN THE INCOME TAX APPELLATE TRIBUNAL “SMC” BENCH, KOLKATA BEFORE SHRI RAJESH KUMAR, ACCOUNTANT MEMBER आयकर अपील सं/ITA No.1308/KOL/2024 (नििाारण वर्ा / Assessment Years : 2017-2018) Basudeb Das, Mamudpur, Charashyamdas, Bishnupur, South 24 Parganas West Bengal Vs ITO, Ward-26(1), Kolkata PAN No. :AQPPD9974P (अपीलार्थी /Appellant) .. (प्रत्यर्थी / Respondent) नििााररतीकीओरसे /Assessee by : Shri Soumitra Choudhury, Advocate राजस्वकीओरसे /Revenue by : Ms. Madhumita Das, Addl.CIT सुनवाई की तारीख / Date of Hearing : 17/04/2025 घोषणा की तारीख/Date of Pronouncement : 24/04/2025 आदेश / O R D E R This is an appeal filed by the assessee against the order dated 09.03.2024, passed by the ld. CIT(A), National Faceless Appeal Centre, (NFAC), Delhi for the Assessment Year 2017-2018. 2. As per the appeal record, it is observed that the appeal is filed belatedly by 34 days. In this regard, the assessee has filed condonation application stating therein sufficient reasons for condonation of delay. Considering the reasons stated in the application of the assessee, the delay of 34 days in filing the present appeal is condoned and the appeals is admitted for hearing. 3. At the time of hearing, ld. counsel of the assessee has raised the additional ground which is extracted as under :- 1. For that on the facts of the case, the Assessing Officer issuing the notice u/s. 143(2) of the I.T. Act, 1961 on 24.09.2018 did not have jurisdiction over the case of the assessee, as there was no mention of the type of scrutiny under which the case of the assessee has been selected, hence the notice is bad-in-law ITA No.1308/KOL/2024 2 and the assessment order passed on the basis of such notice is baseless and should be quashed. 2. For that on the facts of the case, the A.O. was wrong in issuing notice u/s. 143(2) on 24.09.2018 without complying to the CBDT Instruction f. No. 225/157/2017/ITA-II dated 23.06.2017and so the notice issued u/s. 143(2) is not valid as per Provision of Act. 3. For that the appellant reserves the right to adduce any further ground or grounds, if necessary, at or before the hearing of the appeal. 4. Ld. Counsel of the assessee submitted that the above additional ground is legal issue which goes to the root of the issue and, therefore, the assessee is free to raise the issue in any appellate proceedings. Ld. AR relied on the decision of the Hon’ble Supreme Court in the case of National Thermal Power Co. Ltd. Vs. CIT, reported in [1998] 229 ITR 383(SC) in defense of his arguments. Ld. Sr. DR, on the other hand, opposed the additional ground at this stage. After considering the rival contentions and looking to the facts and circumstances of the case, we find that the issue raised by the assessee is purely a legal issue which goes to the root of the matter and we further note that no further facts are required to be brought on records or require any verification at any level whatsoever. Consequently, we admit the additional ground filed by the assessee before us and we proceed to decide the appeal of the assessee on the above legal ground. 5. We note that the additional ground raised by the assessee is with regard to issuance of notice u/s.143(2) of the Act on 24.09.2018 in violation to CBDT Instruction f.No.225/157/2017/ITA-II dated 23.06.2017. The ld. AR also placed before us the above instruction issued by the ITA No.1308/KOL/2024 3 Government of India, Ministry of Finance, Department of Revenue, wherein it has been provided that w.e.f. 23.06.2017, the notice u/s.143(2) of the Act to be issued in any of the three following forms :- ❖ Limited Scrutiny (Computer Aided Scrutiny Selection ❖ Complete Scrutiny (Computer Aided Scrutiny Selection) ❖ Compulsory Manual Scrutiny 6. The ld. AR submitted that the notice is not bearing to any of the above forms prescribed by the CBDT in the above instruction, therefore, notice issued u/s.143(2) of the Act is bad in law for which the assessment is not sustainable. Ld. AR in defense of his arguments, relied on following series of decisions, wherein similar issue has been decided in favour of the assessee :- ❖ 1. Lavanya Estates Pvt. Ltd. vs. ITO ITA No.: 342/PAT/2023 PATNA ITAT ❖ ❖ 2. Shri Rudraprasad Mondal vs. DCIT ITA No.: 702/K/2024 [08.10.2024] Kolkata ITAT ❖ ❖ 3. Dev Milk Foods Pvt. Ltd. vs. Addl. CIT Spl. R-3,New Delhi Delhi ITAT [ITA No.: 6767/Del/2019] dt. 12.06.2023 ❖ ❖ 4. Sukhdham Infrastructure LLP vs. ITO [ITA No.: 2611/Kol/2019] dt. 23.02.2023 Kolkata ITAT ❖ 7. Since the facts and issue involved in the present case are identical to the decisions as relied on by the ld. AR above, we are inclined to hold that notice issued u/s.143(2) of the Act is invalid and, therefore, the assessment framed u/s.143(3) of the Act is also invalid and accordingly quashed. Consequently the additional ground raised by the assessee is allowed. ITA No.1308/KOL/2024 4 8. Since we have decided the appeal of the assessee on legal issue, the grounds raised on merit by the assessee are not deliberated upon at this stage. Thus, appeal of the assessee is allowed. 9. In the result, appeal of the assessee is allowed. Order pronounced in the open court on 24/04/2025. Sd/- (RAJESH KUMAR) लेखा सदस्य/ACCOUNTANT MEMBER कोलकाताKolkata; ददनाांक Dated 24/04/2025 Prakash Kumar Mishra, Sr.P.S. आदेशकीप्रनतललपपअग्रेपर्त/Copy of the Order forwarded to : आदेशािुसार/ BY ORDER, (Assistant Registrar) Income Tax Appellate Tribunal, Kolkata 1. अपीलार्थी/ The Appellant- 2. प्रत्यर्थी/ The Respondent- 3. आयकरआयुक्त(अपील) / The CIT(A), 4. आयकरआयुक्त/ CIT 5. विभागीयप्रविविवि, आयकरअपीलीयअविकरण, कोलकाता / DR, ITAT, Kolkata 6. गार्डफाईल / Guard file. सत्यापपतप्रतत //True Copy// "