Himanka Kumar Paul, Kolkata V. ITO, Ward-34(3), Kolkata

ITA 2320/KOL/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 0992 (ITAT-KOLKATA)
• Duration Of Justice: 7 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-06-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 23-01-2020
• Assessment Year: 2010-2011
• Appeal Filed On: 21-10-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JAYANTA KHANRA
• Assessee Lawyers: MANISH TIWARI
• Keywords: Assessment record
• Section: 143(3); 143(2); 147; 148

Judgement Text

1 ITA NO. 2320/KOL/2019 HIMANKA KUMAR PAUL, AY- 2010- 11 , C(SMC) , IN THE INCOME TAX APPELLATE TRIBUNAL C(SMC) BENCH : KOLKATA ( ) . . , ) [BEFORE SHRI A. T. VARKEY, JM] ITA NO.2320/KOL/2019 ASSESSMENT YEAR: 2010-11 HIMANKA KUMAR PAUL (PAN:AEWPP6436P) VS. INCOME-TAX OFFICER, WD-34(3), KOLKATA APPELLANT RESPONDENT DATE OF HEARING 23.01.2020 DATE OF PRONOUNCEMENT 03.06.2020 FOR THE APPELLANT SHRI MANISH TIWARI, FCA FOR THE RESPONDENT SHRI JAYANTA KHANRA, JCIT, SR. D R ORDER THIS IS AN APPEAL PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A)-10, KOLKATA DATED 16-09-2019 FOR THE ASSESSMENT YEAR 2010-11. 2. AT THE OUTSET LD. AR DREW OUR ATTENTION TO THE G ROUND NO. 3 WHEREIN THE ASSESSEE HAD CHALLENGED THE ACTION OF AO TO FRAME RE-ASSESSMENT WITHOUT ISSUING THE MANDATORY NOTICE U/S. 143(2) OF THE INCOME-TAX ACT, 1961 (HEREINAFTE R REFERRED TO AS THE ACT). 2. SINCE THERE WAS A LEGAL CHALLENGE IN RESPECT OF ISSUE OF NOTICE U/S. 143(2) OF THE ACT, THE LD. DR WAS REQUESTED TO CALL FOR THE ASSESSMENT RECORDS AND EXAMINE WHETHER THE AO HAD ISSUED NOTICE U/S. 143(2) OF THE ACT BEFORE PAS SING THE IMPUGNED REASSESSMENT ORDER. THEREFORE, DURING THE HEARING WHEN THE LD. DR WAS A SKED ABOUT THIS FACT, HE STATED THAT NOTICE U/S. 143(2) OF THE ACT IS FOUND IN THE FILE OF THE ASSESSEE. SO, ON A SPECIFIC QUESTION FROM THE BENCH TO THE LD. DR AS TO WHETHER THERE IS ANY MENTION ABOUT THE ISSUE OF NOTICE U/S. 143(2) OF THE ACT IN THE ORDER SHEET MAINTAINE D BY THE AO, THE LD. DR ANSWERED IN THE NEGATIVE (MEANS THERE WAS NO MENTION OF ISSUE OF NO TICE U/S. 143(2) OF THE ACT AGAINST THE ASSESSEE). ON FURTHER BEING ASKED BY THE BENCH ABO UT ANY PROOF OF SERVICE/DISPATCH OF 2 ITA NO. 2320/KOL/2019 HIMANKA KUMAR PAUL, AY- 2010- 11 NOTICE U/S. 143(2) OF THE ACT, THE LD. DR EXPRESSED HIS IGNORANCE (MEANING THERE WAS NO PROOF OF SERVICE OF NOTICE ON ASSESSEE). 3. AFTER HEARING RIVAL SUBMISSIONS AND ON CAREFUL P ERUSAL OF THE MATERIAL AVAILABLE ON RECORD, IT IS NOTED THAT THE NOTICE UNDER SUB-SECTI ON (2) OF SECTION 143 OF THE ACT HAS NOT BEEN SERVED UPON THE ASSESSEE BEFORE THE AO PROCEEDED TO FRAME THE REASSESSMENT AFTER RESORTING TO REOPENING U/S. 148 READ WITH SECTION 147 OF THE ACT. IT IS NOTED THAT IN THIS CASE ASSESSEE HAD FILED ITS RETURN OF INCOME ON 28.09.2010 FOR AY 2010-11 ON A TOTAL INCOME OF RS.18,30,827/-. THEREAFTER, THE ASSESSEE FILED REV ISED COMPUTATION IN WHICH HE CLAIMED REFUND OF RS.4,91,893/-. THE AO NOTED CERTAIN DISC REPANCY IN THE ITS DATA AND CORRESPONDING CLAIM OF THE ASSESSEE IN HIS RETURN O F INCOME. THEREFORE, HE ISSUED NOTICE U/S. 148 OF THE ACT PURSUANT TO WHICH ASSESSEE FILED RET URN ON 14.03.2017 DECLARING TOTAL INCOME OF RS.44,29,669/-. THEREAFTER, THE AO FRAMED THE R EASSESSMENT AND MADE ADDITION OF NOTIONAL RENT OF THE PROPERTY AT KRISHNA APARTMENT, BANGALORE TO THE TUNE OF RS.44,616/- AS WELL AS INTEREST ON INCOME TAX TO THE TUNE OF RS.15 ,046/-. THUS, COMPUTED THE TOTAL INCOME AT RS.44,89,330/- WHEREAS ASSESSEE HAD REFLECTED IN THE RETURN OF RS.44,29,669/- SO, RS.59,661/- WAS ADDED BY THE AO IN THE IMPUGNED REA SSESSMENT ORDER. ON APPEAL, THE LD. CIT(A) HAS NOT ADJUDICATED THE LEGAL ISSUE RAISED B Y THE ASSESSEE REGARDING NON ISSUANCE/SERVICE OF NOTICE U/S. 143(2) OF THE ACT. AS DISCUSSED ABOVE, IT IS NOTED THAT THE AO THOUGH HAD KEPT A COPY OF THE NOTICE UNDER SUB-SECT ION (2) OF SECTION 143 OF THE ACT, HOWEVER, HAS NOT MENTIONED THE ISSUANCE OF NOTICE U NDER SUB-SECTION (2) OF SECTION 143 IN THE ORDER SHEET MAINTAINED IN RESPECT OF THE ASSESS EE IN ITS FILE. THE LD. DR ALSO COULD NOT BRING TO OUR NOTICE ANY PROOF REGARDING DISPATCH/SE RVICE OF NOTICE TO THE ASSESSEE. IT IS TRITE LAW THAT NOTICE U/S. 143(2) OF THE ACT NEED TO BE I SSUED THEN ONLY THE AO CAN VALIDLY ASSUME JURISDICTION FOR FRAMING OF SCRUTINY ASSESSMENT U/S . 143(3) OF THE ACT. FOR THAT WE RELY ON THE ORDER OF THE HONBLE SUPREME COURT IN HOTEL BLUEMOO N 321 ITR 362 (SC) AND THE DECISION OF THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF P CIT VS. OBEROI HOTELS PVT. LTD. (2018) 96 TAXMAN.COM 104(CAL) WHEREIN THE HONBLE HIGH COU RT HELD THAT WHERE THE AO HAD COMPLETED ASSESSMENT OF ASSESSEE U/S. 143(3) READ W ITH SECTION 147 OF THE ACT WITHOUT ISSUING ANY NOTICE U/S. 143(2) OF THE ACT, REASSESS MENT ORDER PASSED WAS LEGALLY 3 ITA NO. 2320/KOL/2019 HIMANKA KUMAR PAUL, AY- 2010- 11 UNSUSTAINABLE. IN THE LIGHT OF THE AFORESAID FINDI NG THAT AO HAS NOT ISSUED OR SERVED THE NOTICE U/S. 143(2) OF THE ACT, THE ASSESSEE SUCCEE DS IN THE LEGAL CHALLENGE HE HAS RAISED AND, THEREFORE, THE USURPATION OF JURISDICTION OF AO IS FOUND WITHOUT JURISDICTION AND, THEREFORE, ALL ACTIONS THEREAFTER ARE NULL IN THE EYES OF LAW AND, THEREFORE, I QUASH THE IMPUGNED RE- ASSESSMENT ORDER PASSED BY THE AO. 4. BEFORE PARTING, IT IS NOTED THAT THE ORDER IS BE ING PRONOUNCED AFTER NINETY (90) DAYS OF HEARING. HOWEVER, TAKING NOTE OF THE EXTRAORDINARY SITUATION IN THE LIGHT OF THE COVID-19 PANDEMIC AND LOCKDOWN, THE PERIOD OF LOCKDOWN DAYS NEED TO BE EXCLUDED. FOR COMING TO SUCH A CONCLUSION, I RELY UPON THE DECISION OF THE CO-ORDINATE BENCH OF THE MUMBAI TRIBUNAL IN THE CASE OF DCIT VS. JSW LIMITED IN ITA NO. 6264/MUM/2018 & 6103/MUM/2018, ASSESSMENT YEAR 2013-14, ORDER DT. 1 4 TH MAY, 2020. 5. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED . ORDER IS PRONOUNCED IN THE OPEN COURT ON 3 RD JUNE, 2020. SD/- (ABY. T. VARKEY) JUDICIAL MEMBER DATED : 3 RD JUNE, 2020 JD.(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1. APPELLANT SHRI HIMANKA KUMAR PAUL, AJANTA APAR TMENT, FLAT NO. 2F, 10, GURUSADAY ROAD, KOLKATA-700 019. 2 RESPONDENT - ITO, WARD-34(3), KOLKATA. 3. 4. 5. CIT(A)-10, KOLKATA (SENT THROUGH E-MAIL) CIT- , KOLKATA. DR, ITAT, KOLKATA. (SENT THROUGH E-MAIL) BY ORDER, / TRUE COPY, ASSISTANT REGISTRAR