CHINMOY MONDAL,BURDWAN V. ACIT, CIRCLE 1, , BURDWAN

ITA 1148/KOL/2025

AI Insights

The case involves an appeal by Chinmoy Mondal against the order of the National Faceless Appeal Centre, Delhi, which upheld the validity of a notice and subsequent assessment issued by the Assistant Commissioner of Income Tax, Circle-1, Burdwan. The primary contention was the jurisdiction of the officer who issued the notice under section 148 of the Income Tax Act, 1961, which the assessee argued was in violation of CBDT Instruction No. 1/2011. The tribunal, referencing a similar case decided by the Bombay High Court, found in favor of the assessee, quashing the assessment due to the issuing officer's lack of jurisdiction.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 779256 (ITAT-KOLKATA)
• Duration Of Justice: 4 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-10-2025
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2014-2015
• Appeal Filed On: 27-05-2025
• Other Referred Cases: Ashok Devichand Jain vs. Union of India [2023] 151 taxmann.com 70 (Bombay)/[2023] 452 ITR 43 (Bombay)[08-03-2022]
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUBRATA AICH
• Assessee Lawyers: SOMNATH GHOSH
• Keywords: Set aside
• Section: 147; 148; 144; 143(3)

Judgement Text

" IN THE INCOME TAX APPELLATE TRIBUNAL “A” BENCH, KOLKATA BEFORE SHRI RAJESH KUMAR, AM AND SHRIPRADIP KUMAR CHOUBEY, JM ITA No.1148/KOL/2025 (Assessment Year:2014-15) Chinmoy Mondal C/o S.N. Ghosh & Associates, Advocates 2, Garstin Place, 2 nd Floor, Suite No.203, Off hare Street, Kolkata-700001, West Bengal Vs. ACIT, Circle-1, Burdwan Asst. Commissioner of Income Tax, Circle 1, Burdwan, Aaykar Bhawan Poorva, Kachari Road, Court Compound, P.O. & P.S. Burdwan, Dist. Purba Barddhaman-713101, West Bengal (Appellant) (Respondent) PAN No. ADZPM8111E Assessee by : Shri Somnath Ghosh, AR Revenue by : Shri Subrata Aich, DR Date of hearing: 18.09.2025 Date of pronouncement: 15.10.2025 O R D E R Per Rajesh Kumar, AM: This is an appeal preferred by the assessee against the order of the National Faceless Appeal Centre, Delhi (hereinafter referred to as the “Ld. CIT(A)”] dated 25.02.2025 for the AY 2014-15. 02. During the course of hearing the assessee pressed ground no.2, which is extracted below: - “2. FOR THAT the Ld. Commissioner of Income Tax (Appeals)-NFAC erred in upholding the validity of the impugned notice dated 27-07-2022 issued u/s. 148 of the Income Tax Act, 1961 and the consequential assessment order framed u/s. 147/144 of the Income Tax Act, 1961 by the Id. Assistant Commissioner of Income Tax, Circle 1. Burdwan in absolute infringement of the C.B.D.T. Printed from counselvise.com Page | 2 ITA No.1148/KOL/2025 Chinmoy Mondal; A.Y. 2014-15 Instruction No. 1/2011 dated 31-01-2011 and the purported action on that behalf is altogether unfounded, unjustified and untenable in law.” 03. The facts in brief are that the assessee filed the return of income on 31.10.2014, declaring total income of ₹14,09,760/-. The assessment was framed in this case u/s 143(3) of the Income-tax Act, 1961 (the Act) vide order dated 30.12.2016, accepting the returned income. Thereafter, the case of the assessee was reopened u/s 147 of the Act by issuing notice u/s 148 of the Act on 27.07.2022, which was apparently after 01.04.2021. The said notice was treated as issued notice u/s 148A(b) of the Act in accordance with the decision of the Hon'ble Apex Court in the case of Ashish Agarwal (Civil appeal No. 305/2022). Thereafter, the order u/s 148A(d) of the Act was also passed. However, the assessee did not file any return of income during the year as stated above. The assessee declared total income of ₹14,09,760/-and the case was in the jurisdiction of the ITO, whereas the notice dated 27.07.2022, has been issued by ACIT, Circle-1, Bardhaman, copy of which is available at page no.18 of the Paper Book. The assessment was also framed by the ld. ACIT, Circle- 1, Bardhaman. 04. The assessee challenged the said issuance of notice by the ACIT, Circle-1, Bardhaman and consequently passing the order by the same authority on the ground that same is in violation of CBDT instruction no.1/2011 (F.No.187/12/2010-IT(A-1), dated 31.01.2011, which provides that assessment shall be framed by the learned AO in accordance with aforesaid CBDT instruction. 05. Therefore, notice issued by the ld. JCIT is bad in law and so is the assessment framed u/s 147 read with section 144 of the Act. In defense of his argument the ld. AR relied on the decision of Ashok Printed from counselvise.com Page | 3 ITA No.1148/KOL/2025 Chinmoy Mondal; A.Y. 2014-15 Devichand Jain vs. Union of India [2023] 151 taxmann.com 70 (Bombay)/[2023] 452 ITR 43 (Bombay)[08-03-2022], wherein a similar issue has been decided in favour of the assessee by the court by observing and holding as under:- “2. The primary ground that has been raised is that the Income-tax Officer who issued the notice under section 148 of the Act, had no jurisdiction to issue such notice. According to Petitioner as per instruction No. 1/2011 dated 31st January, 2011 issued by the Central Board of Direct Taxes, where income declared/returned by any Non-Corporate assessee is up to Rs. 20 lakhs, then the jurisdiction will be of ITO and where the income declared returned by a Non Corporate assessee is above Rs. 20 lakhs, the jurisdiction will be of DC/AC. 3. Petitioner has filed return of income of about Rs. 64,34,663/-and therefore, the jurisdiction will be that of DC/AC and not ITO. Mr. Jain submitted that since notice under section 148 of the Act has been issued by ITO, and not by DC/AC that is by a person who did not have any jurisdiction over Petitioner, such notice was bad on the count of having been issued by an officer who had no authority in law to issue such notice. 4. We have considered the affidavit in reply of one Mr. Suresh G. Kamble, ITO who had issued the notice under section 148 of the Act. Said Mr. Kamble, ITO, Ward 12(3)(1), Mumbai admits that such a defective notice has been issued but according to him, PAN of Petitioner was lying with ITO Ward (12)(3)(1), Mumbai and it was not feasible to migrate the PAN having returned of income exceeding Rs. 30 lakhs to the charge of DCIT, Circle 12(3)(1), Mumbai, as the time available with the ITO 12(3)(1) was too short to migrate the PAN after obtaining administrative approval from the higher authorities by 31st March, 2019. 5. The notice under section 148 of the Act is jurisdictional notice and any inherent defect therein is not curable. In the facts of the case, notice having been issued by an officer who had no jurisdiction over the Petitioner, such notice in our view, has not been issued validly and is issued without authority in law. 6. In the circumstances, we have no hesitation in setting aside the notice dated 30th March, 2019. 7. Consequently the order dated 18th November, 2019 rejecting Petitioner's objection is also quashed and set aside. 8. Petition disposed. 9. No order as to costs.” Printed from counselvise.com Page | 4 ITA No.1148/KOL/2025 Chinmoy Mondal; A.Y. 2014-15 06. The ld. DR on the other hand submitted that the issue was not raised before the ld. AO and the appeal was also ex-parte before the ld. CIT (A). Therefore, the same may be restored to the file of the ld. lower authorities for making decision on the issue. 07. After hearing the rival contentions and perusing the materials available on record, we find that in this case, the assessee declared total income at ₹14,09,760/- as per the return file don 30.10.2014. Thus, the jurisdiction to issue notice u/s 148 of the Act apparently lies with the ld. ITO and not with the ld. ACIT as provided in the CBDT instruction no.1/2011 (F.No.187/12/2010-IT(A-1), dated 31.01.2011. The said instruction is extracted below: ““Instruction No.1/2011 [F.No.187/12/2010-ΙΠ(A-1), DATED 31-1-2011 References have been received by the Board from a large number of taxpayers, especially from mofussil areas, that the existing monetary limits for assigning cases to ITOs and DCS/ACs is causing hardship to the taxpayers, as it results in transfer of their cases to a DC/AC who is located in a different station, which increases their cost of compliance. The Board had considered the matter and is of the opinion that the existing limits need to be revised to remove the abovementioned hardship. Income declared (mofussil areas) Income declared (metro cities) ITOs Acs/ DCs ITOs DCs/ Acs Corporate returns Upto ₹20 lcs Above ₹20 lacs Upto ₹30 lacs Above ₹30 lacs Non-corporate returns Upto ₹15 lacs Above ₹15 lacs Upto ₹20 lacs Above ₹20 lacs An increase in the monetary limits is also considered desirable in view of the increase in the scale of trade and industry since 2001, when the present income limits were introduced. It has therefore been decided to increase the monetary limits as under: Metro charges for the purpose of above instructions shall be Ahmedabad, Bangalore, Chennai, Delhi, Kolkata, Hyderabad, Mumbai and Pune. The above instructions are issued in supersession of the earlier instructions and shall be applicable with effect from 1-4-2011.\" 08. The case of the assessee find support from the decision of Hon'ble Bombay High Court in case of Ashok Devichand Jain vs. Union Printed from counselvise.com Page | 5 ITA No.1148/KOL/2025 Chinmoy Mondal; A.Y. 2014-15 of India (supra). Therefore, we squarely following the decision of the Hon'ble Bombay High Court, quash the assessment framed by the ld. AO for lack of inheritance jurisdiction. 09. In the result, the appeal of the assessee is allowed. Order pronounced in the open court on 15.10.2025. Sd/- Sd/- (PRADIP KUMAR CHOUBEY) (RAJESH KUMAR) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) Kolkata, Dated: 15.10.2025 Sudip Sarkar, Sr.PS Copy of the Order forwarded to: BY ORDER, True Copy// Sr. Private Secretary/ Asst. Registrar Income Tax Appellate Tribunal, Kolkata 1. The Appellant 2. The Respondent 3. CIT 4. DR, ITAT, 5. Guard file. Printed from counselvise.com "