SAROJIN SATPATHY, BHUBANESWAR V. ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-5(1), BHUBANESWARW, BHUBANESWAR

ITA 261/CTK/2024

• Counselvise Citation: [2024] 101 COUNSELVISE.COM (IT) 5009 (ITAT-CUTTACK)
• Duration Of Justice: 2 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-08-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2017-2018
• Appeal Filed On: 06-06-2024
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 264

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BEFORE MANISH AGARWAL Sarojini Satpathy, At:N 3/455, IRC Village, PO/PS: Nayapalli, Bhubaneswar PAN/GIR No. (Appellant Per Bench This is an appeal filed by the assessee against the order of the ld CIT(A), NFAC, Delhi dated 2/10298/2019 2. Shri P.K.Mishra, S.C.Mohanty, Sr. 3. The appeal of the assessee is delayed by 61 days. The filed condonation petition supported by affidavit, wherein, he has mentioned IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK BEFORE SHRI GEORGE MATHAN, JUDICIAL AND MANISH AGARWAL, ACCOUNTANT MEMBER ITA No.261/CTK/2024 Assessment Year : 2017-18 Sarojini Satpathy, At:N- 3/455, IRC Village, PO/PS: Nayapalli, Bhubaneswar Vs. Asst. Commissioner of Income Tax, Circle Bhubaneswar No.ASGPS 9377 Q (Appellant) .. ( Respondent Assessee by : Shri P.K.Mishra, Adv Revenue by : Shri S.C.Mohanty, Sr Date of Hearing : 13/8 Date of Pronouncement : 13/8 O R D E R This is an appeal filed by the assessee against the order of the ld CIT(A), NFAC, Delhi dated 7.2.2024 in Appeal No.CIT(A), Bhubaneswar 2/10298/2019-20 for the assessment year 2017-18. P.K.Mishra, ld AR appeared for the assessee and Shri S.C.Mohanty, Sr. DR appeared for the revenue. The appeal of the assessee is delayed by 61 days. The filed condonation petition supported by affidavit, wherein, he has mentioned Page1 | 4 IN THE INCOME TAX APPELLATE TRIBUNAL, JUDICIAL MEMBER , ACCOUNTANT MEMBER Asst. Commissioner of Income Tax, Circle-5(1), Bhubaneswar Respondent) P.K.Mishra, Adv S.C.Mohanty, Sr DR 8/2024 /8/2024 This is an appeal filed by the assessee against the order of the ld CIT(A), Bhubaneswar- the assessee and Shri The appeal of the assessee is delayed by 61 days. The assessee has filed condonation petition supported by affidavit, wherein, he has mentioned ITA No.261/CTK/2024 Assessment Year : 2017-18 Page2 | 4 that the order had been served in the spam folder of the assessee’s counsel and same was lost track of. It was only when the assessee opened the portal, he found that the order has been passed and same was verified by the counsel and checked spam folder and immediately on tracing the order, the appeal has been filed. The reasons given by the assessee is found to be plausible and has not been found to be false. Consequently, the delay in filing of the appeal is condoned and the appeal of the assessee disposed of on merits. 4. It was submitted by ld AR that the assessee had filed his return of income for the impugned assessment year on 25.9.2017. It was the submission that without processing the said return filed, the Assessing Officer had initiated the proceedings of reopening by issuance of notice u/s.148 on 23.5.2018. It was the submission that the time limit for issuance of notice u/s.143(2) was available till 30.9.2018. Consequently, notice issued u/s.148 of the Act on 23.5.2018 was bad in law. Ld AR placed reliance on the decision of Hon’ble Madras High Court in the case of K.M.Pachayappan (2008) 304 ITR 264 (Mad), wherein, following the decision of Hon’ble Supreme Court in the case of Trustees of H.E.H. The Nizama’s Supplemental Family Trust vs CIT, 242 ITR 381 (SC) and also the decision of Hon’ble Delhi High Court in the case of KLM Royal Dutch Airlines vs Asst. Director of Income Tax, 292 ITR 49 (Del) held that no action could be initiated u/s.147 of the Act when there is pendency of the return before ITA No.261/CTK/2024 Assessment Year : 2017-18 Page3 | 4 the Assessing Officer. Ld AR also relied upon the decision of Hon’ble Madras High Court in the case of CIT vs. Qatyalys Software Technologies Ltd., (2009) 308 ITR 249 (Mad), wherein, identical finds have been rendered by the Hon’ble High Court. 5. In reply, ld Sr DR vehemently supported the order of the AO and ld CIT(A). It was the submission that in view of the provisions of section 124(3) of the Act, the assessee having not challenged the reopening within one month before the Assessing Officer, the reopening is liable to be upheld. 6. We have considered the rival submissions. A perusal of the provisions of section 124(3) of the Act clearly shows that the provision is in relation to the jurisdiction of the Assessing Officer over an assessee. In the present case, the assessee has not challenged the jurisdiction of the AO. The assessee has challenged the action of the Assessing Officer in reopening of the assessment during the pendency of a valid return remaining live before the Assessing Officer. Admittedly, in the present case, the return has been filed on 25.9.2017 and the time limit for issuance of notice u/s.143(2) of the Act expires only on 30.9.2018. Consequently, the issuance of notice u/s.148 of the Act on 23.5.2018 when the return was live before the Assessing Officer is bad in law and is liable to be quashed and we do so. Our view finds support from ITA No.261/CTK/2024 Assessment Year : 2017-18 Page4 | 4 the decision of Hon’ble Madras High Court in the case of CIT vs. K.M.Pachayappan (supra) and in the case of Qatalys Software Technologies Ltd (supra). Consequently, notice issued u/s.148 of the Act is quashed and the consequential assessment also stands quashed. 7. In the result, appeal of the assessee stands allowed. Order dictated and pronounced in the open court on 13/08/2024. Sd/- sd/- (Manish Agarwal) (George Mathan) ACCOUNTANT MEMBER JUDICIAL MEMBER Cuttack; Dated 13/08/2024 B.K.Parida, SPS (OS) Copy of the Order forwarded to : By order Sr.Pvt.Secretary ITAT, Cuttack 1. The Appellant : Sarojini Satpathy, At:N- 3/455, IRC Village, PO/PS: Nayapalli, Bhubaneswar 2. The Respondent: Asst. Commissioner of Income Tax, Circle-5(1), Bhubaneswar 3. The CIT(A)- NFAC, Delhi 4. Pr.CIT2, Bhubaneswar 5. DR, ITAT, 6. Guard file. //True Copy//