JBS Projects Pvt. Ltd., Bankura V. ITO, Ward-3(1), Kolkata

ITA 439/KOL/2024

• Counselvise Citation: [2024] 100 COUNSELVISE.COM (IT) 1767 (ITAT-KOLKATA)
• Duration Of Justice: 3 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-06-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2016-2017
• Appeal Filed On: 29-02-2024
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Reassessment proceedings
• Section: 147; 148; 144; 250

Judgement Text

आयकर अपीलीय अधिकरण कोलकाता 'ए' पीठ, कोलकाता म ें IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA ‘A’ BENCH, KOLKATA श्री संजय गग ग , न्याधयक सदस्य एवं श्री संजय अवस्थी, ल े खा सदस्य क े समक्ष Before SRI SANJAY GARG, JUDICIAL MEMBER & SRI SANJAY AWASTHI, ACCOUNTANT MEMBER I.T.A. No.: 439/KOL/2024 Assessment Year: 2016-17 JBS Projects Pvt. Ltd................................................................Appellant [PAN: AACCJ 0581 A] Vs. ITO, Ward-3(1), Kolkata........................................................Respondent Appearances: Assessee represented by: Amit Agarwal, Adv. Department represented by: Divakar Chakraborty, Addl. CIT. Date of concluding the hearing : May 16 th , 2024 Date of pronouncing the order : June 6 th , 2024 ORDER Per Sanjay Awasthi, Accountant Member: The present appeal arises from the order passed u/s 250 of the Income Tax Act, 1961 (in short the ‘Act’) dated 26.12.2023 by the Commissioner of Income Tax (Appeals)-NFAC, Delhi [in short ld. ‘CIT(A)’], pertaining to AY 2016-17. 2. In this case, there is a delay of 6 days which deserves to be condoned considering the reasons mentioned in appellant’s letter dated 01.03.2024. 3. In this case, it is seen from the records that an ex-parte order dated 26.12.2023 u/s 250 of the Act was passed by the ld. first appellate authority I.T.A. No.: 439/KOL/2024 Assessment Year: 2016-17 JBS Projects Pvt. Ltd. Page 2 of 6 by dismissing the appeal in limine. It is further seen that the Assessing Officer (in short ld. ‘AO’) passed order u/s 147 read with Section 144 read with Section 144B of the Act dated 28.03.2022. The appellant had filed the appeal with as many as 6 grounds but vide his application dated 14.05.2024 3 additional grounds were filed for admittance as under: “1) That the impugned reassessment proceedings initiated in the instant case by way of issuing notice under the unamended provision of Section 148 of the Income Tax Act, 1961 vide notice, dated 30 th March, 2021 , was rendered time barred as the said notice was admittedly uploaded for communication on 14 th April, 2021 beyond the time limit prescribed in the Income Tax Act for initiating a valid reassessment proceedings under the unamended provisions of section 147/148 of the Act which provisions were substituted/amended w.e.f. 1 st April, 2021. 2) That, without prejudice to the above ground, the Assessing Officer erred in assuming jurisdiction to initiate reassessment proceedings under the unamended provision of section 147 to 151 of the Income Tax Act, 1961 by way of issuing notice under the said unamended provision of Section 148 of the Income Tax Act, 1961, which notice was dated 30 th March, 2021 but which notice was admittedly uploaded for communication on 14th April, 2021 only and thus the Assessing Officer was required to follow the procedure prescribed under the amended provisions of section 148A of the Act before initiating a valid reassessment proceedings by way of issuing a notice under the amended section 148 of the Act. 3) That, without prejudice to the above ground, the Assessing Officer even otherwise could not have assumed jurisdiction under section 148A of the Act for the Assessment Year 2016-17 which was beyond 3 years from the end of the relevant Assessment Year and thus the essential condition of income escaping assessment to be more than 50 lakh, and that too represented in the form of an asset, was not getting fulfilled in the instant case.” 3.1. Since the additional grounds of appeal challenged the assumption of jurisdiction itself, it is essential to deal with them first and thereafter, if required, proceed on the merits of the case. Briefly, the appellant has challenged that the ld. AO’s order was passed by issuing and serving a notice u/s 148 of the Act beyond the stipulated legal time available for such an exercise. The appellant has taken pains to point out and file screenshots of e- mails and ITBA Portal to show that the notice dated 30.03.2021 issued u/s 148 of the Act was uploaded for communication and issued/served on the I.T.A. No.: 439/KOL/2024 Assessment Year: 2016-17 JBS Projects Pvt. Ltd. Page 3 of 6 appellant for the first time on 14.04.2021 at 09:40 PM through e-mail ID – [e-mail]. The screenshot is reproduced as under: I.T.A. No.: 439/KOL/2024 Assessment Year: 2016-17 JBS Projects Pvt. Ltd. Page 4 of 6 3.2. The said notice being communicated to the assessee on 14.04.2021 is thus, rendered time barred as ld. AO apparently failed to follow the procedure prescribed under the amended provisions of Section 148A of the Act. It has been claimed by the appellant that the necessary screenshots and printouts are obtained from the records of the AO as also the ITBA portal. The ld. Counsel for the assessee has also relied on the following decisions for admitting the additional grounds of appeal: i) Jute Corporation of India vs. CIT [187 ITR 688] ii) National Thermal Power Co. Ltd. vs. CIT [229 ITR 383] 4. We have carefully considered the matter and it is seen from the screenshots and printouts made available by the ld. A/R that indeed the notice u/s 148 of the Act was uploaded on 14.04.2021 only. A screenshot of the ITBA portal is also relevant in this case which is reproduced as under: I.T.A. No.: 439/KOL/2024 Assessment Year: 2016-17 JBS Projects Pvt. Ltd. Page 5 of 6 4.1. The ld. D/R also examined the documents and agreed that the same were from the ITBA portal. 4.2. In support of his contentions, the ld. A/R has relied on a number of authorities which have directed that any notice served beyond the stipulated time, howsoever small the gap may be between the time barring date/time and the actual issue of the notice, it would still not save the proceedings from being vitiated. Thus, reliance has been placed on the following cases: i) Marudhar Vintrade Private Limited vs. Union of India & Ors. WPA No. 4382 of 2022, order dt. 12/04/2022 (Hon’ble Calcutta High Court) ii) Sandeep Kumar Shah vs. Income Tax Officer, Ward-50(1), Kolkata - ITA No. 07/Kol/2023, order dt. 30/11/2023 (ITAT Kolkata) iii) Ranicherra Rea Co. Ltd. vs. Income Tax Officer, Ward-4(4), Kolkata - ITA No.609/Kol/2023, date of order 26/02/2024 (ITAT Kolkata) iv) Mamta Choraria vs, Income Tax Officer, Ward-36(1), Kolkata I.T.A. No. 214/Kol/2024 order dated 01.05.2024 (ITAT Kolkata) v) Arun Kumar Singh Vs. Union Of India WPA No. 2646 of 2022 order dated 23 rd September, 2022 (Hon’ble Calcutta High Court) 4.3. Considering the clear evidence regarding delayed issue of notice, it is hereby held that the proceedings sought to be initiated through issue of notice u/s 148 of the Act are void-ab-initio. Accordingly, the order of ld. AO and ld. CIT(A) cannot be legally sustained. The assessee succeeds in respect of the additional grounds of appeal, leaving no scope for any further adjudication on the merits as per the original grounds of appeal. 5. In the result, the appeal filed by the assessee is allowed. Order pronounced in the open Court on 6 th June, 2024. Sd/- Sd/- [Sanjay Garg] [Sanjay Awasthi] Judicial Member Accountant Member Dated: 06.06.2024 Bidhan (P.S.) I.T.A. No.: 439/KOL/2024 Assessment Year: 2016-17 JBS Projects Pvt. Ltd. Page 6 of 6 Copy of the order forwarded to: 1. JBS Projects Pvt. Ltd., Taldangra, S.O. Bankura, Bankura, West Bengal, 722151. 2. ITO, Ward-3(1), Kolkata. 3. CIT(A)-NFAC, Delhi. 4. CIT- 5. CIT(DR), Kolkata Benches, Kolkata. //True copy // By order Assistant Registrar ITAT, Kolkata Benches Kolkata