Manorama Devi Jaiswal, Kolkata V. ITO, Ward-35(4), Kolkata

ITA 485/KOL/2020

• Counselvise Citation: [2021] 104 COUNSELVISE.COM (IT) 8242 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 2 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-11-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2014-2015
• Appeal Filed On: 31-08-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Revision of order; Rule of consistency; Procedural lapse; Condonation of delay
• Section: 263; 143(3); 144C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA ‘B’ BENCH, KOLKATA (Virtual Court) (Before Shri P.M. Jagtap, Vice-President & Shri Partha Sarathi Chaudhury, Judicial Member) I.T.A. No. 485/Kol/2020 Assessment Year: 2014-15 Manorama Devi Jaiswal................................................................................................Appellant [PAN: ACHPJ 3514 H] Vs. ITO, Ward-35(4), Kolkata........................................................................................Respondent Appearances by: Sh. Anil Kochar, Adv., appeared on behalf of the Assessee. Sh. Sudipta Guha, CIT, appeared on behalf of the Revenue. Date of concluding the hearing : November 16 th , 2021 Date of pronouncing the order : November 17 th , 2021 ORDER Per Partha Sarathi Chaudhury, JM: This appeal preferred by the assessee emanates from the order of the Learned Pr. Commissioner of Income Tax-12, Kolkata [hereinafter the “Pr. CIT”], dated 16.03.2020 u/s 263 of the Income Tax Act, 1961 (hereinafter the ‘Act’) for the Assessment Year (hereinafter ‘AY’) 2014-15 as per the following grounds of appeal: “1. For that the order passed by the Pr. CIT u/s 263 of the Act is arbitrary, erroneous, without proper reasons, invalid and bad-in-law, to the extent to which they are prejudicial to the interests of the appellant. 2. For that the Ld Pr. CIT failed to appreciate the facts of the case and the submissions made by the appellant and simply proceeded to frame order u/s 263. 3. For that the Ld Pr. CIT erred in misconstruing the fact that the non-furnishing of draft order u/s 144C by the AO is not a procedural lapse which can be corrected under provisions of Section 263. 4. For that the Ld. Pr. CIT erred in passing order u/s 263 in order to rectify the error/mistake committed by the AO which itself was not curable. 5. For that the appellant being in appeal against the order passed u/s 143(3) the Pr. CIT could not have invoked proceedings u/s 263 of the Act” 2 I.T.A. No. 485/Kol/2020 Assessment Year: 2014-15 Manorama Devi Jaiswal. 2. The sole grievance of the assessee in this appeal is the assumption of revisionary jurisdiction u/s 263 of the Act by the Pr. CIT. At the outset the ld. Counsel for the assessee submitted that there is a delay of 109 days in filing of the appeal and it was also brought to our notice that the date of impugned order was 16.03.2020 which was therefore the Pandemic time. This delay was stated to be neither deliberate nor intentional but was due to the pandemic circumstances prevailing at that time. We take note of the pandemic situation where the movement of people were restricted and because of such practical situation, it was always not possible to follow the time of limitation regarding filing of appeal before various forums. This fact was also observed and taken cognizance of by the Hon’ble Supreme Court of India, in Civil Original Jurisdiction, Suo Moto Writ Petition (Civil) No. 3 of 2020 dated 8 th March, 2021. The assessee has also filed separately condonation petition. The ld. D/R agreed for the condonation of delay of 109 days. After hearing the parties and taking guidance from the decision of the Hon’ble Supreme Court (supra) we condone the delay of the assessee and proceed to hear the case on merits. 3. The ld. Counsel for the assessee appraised the Bench that at para 2 of the Pr. CIT’s order it is stated that before completion of the final assessment a draft assessment order should have been served on the assessee as per the mandatory provision of Section 144C of the Act which the AO has not complied with and therefore the assessment order passed by him on 25.09.2017 was erroneous and prejudicial to the interest of the Revenue. Therefore, it is an undisputed fact that the mandatory provision of Section 144C of the Act to provide a draft assessment order to the assessee before making the final assessment was not complied with by the AO. In this regard, the Kolkata Bench of the Tribunal on exactly identical issue and similar facts and circumstances in ITA No. 416/Kol/2020, AY 2014-15 in the case of Mohan Jute Bags Mfg. Co. vs. Pr. CIT has observed and held as follows: “In view of the aforesaid discussion of the issue we hold that the AO’s omission to frame draft assessment order breached the Rule of Law and consequently, his non-action to frame draft assessment order before passing the final assessment order was in contravention of mandatory provision of law as stipulated in Section 144C of the Act, consequently his action is arbitrary and whimsical exercise of power which offends Article 14 & 21 of the Constitution of India and therefore an action made without jurisdiction and ergo the assessment order dated 25.09.2017 is null in the eyes of law and therefore, is non-est. Therefore, when the foundation itself does not exist, i.e. assessment order dated 25.09.2017 is non-est, the ld. PCIT could not have exercised his jurisdiction to interfere with void/null order which is not existing in the eyes of law and, 3 I.T.A. No. 485/Kol/2020 Assessment Year: 2014-15 Manorama Devi Jaiswal. therefore, the impugned order of ld. PCIT is also a nullity. The assessee succeeds on the legal issue.” 4. In this aforestated judicial precedent it was held that since the mandatory provision of law as stipulated in Section 144C of the Act was not complied with and therefore, the assessment order itself becomes nullity in the eyes of law and therefore, is non-est. That when the foundation itself for the assumption of revisionary jurisdiction u/s 263 of the Act does not exist, that in this case the assessment order itself is non-est, in such scenario the ld. Pr. CIT could not have exercised his revisionary jurisdiction in respect of a null and void assessment order and thus maintaining the rule of consistency and respectfully following the aforestated judicial precedent, we hold that the impugned order of the ld. Pr. CIT is also a nullity. 5. In the result, the appeal of the assessee is allowed. Kolkata, the 17 th November, 2021. Sd/- Sd/- [P.M. Jagtap] [Partha Sarathi Chaudhury] Vice-President Judicial Member Dated: 17.11.2020 Bidhan (P.S.) Copy of the order forwarded to: 1. Manorama Devi Jaiswal, Prop. of M/s. Prakash Deep, 27, Amartalla Lane, Kolkata- 700 001. 2. ITO, Ward-35(4), Kolkata. 3. CIT(A)- 4. CIT- 5. CIT(DR), Kolkata Benches, Kolkata. (sent through mail) True copy By order Senior Pvt. Secy./DDO/H.O.O. ITAT, Kolkata Benches, Kolkata