Ruchi Roongta, Kolkata V. ITO, Ward-45(4), Kolkata

ITA 5/KOL/2022

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 5378 (ITAT-KOLKATA)
• Duration Of Justice: 2 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-03-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 05-01-2022
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 148; 143(3)

Judgement Text

1 ITA No.5/Kol/2022 Ruchi Roongta, AY: 2013-14 IN THE INCOME TAX APPELLATE TRIBUNAL “SMC” BENCH, KOLKATA [Before Shri A. T. Varkey, JM] I.T.A. No. 5/Kol/2022 Assessment Year: 2013-14 Smt. Ruchi Roongta (PAN: ACHPC6272B) Vs . Income Tax Officer, Ward-45(4), Kolkata Appellant Respondent Date of Hearing 15.03.2022 Date of Pronouncement 31.03.2022 For the Appellant Shri S. M. Surana, Advocate For the Revenue Shri Nicholas Murmu, Addl. CIT ORDER This is an appeal preferred by the assessee against the order of Ld. CIT(A), National Faceless Appeal Centre (NFAC), Delhi dated 23.12.2021 for AY 2013-14. 2. At the outset, the Ld. AR of the assessee Shri S. M. Surana raised a legal issue as to the jurisdiction of the AO [ITO, Ward-36(4)] to frame the reassessment order dated 27.12.2019 u/s. 143(3) r.w.s. 147 of the Income-tax Act, 1961 (hereinafter referred to as the “Act”). In order to raise this legal issue for the first time before this Tribunal he relied on the decision of Hon’ble Supreme Court in National Thermal Power Co. Ltd. Vs. CIT (1998) 229 ITR 383 (SC). Since it is a pure legal issue, the Ld. DR also could not oppose in the light of the decision of the Hon’ble Supreme Court in the case of National Thermal Power Co. Ltd. (supra). 3. Regarding the legal issue, the Ld AR assailing the action of the AO [ITO, Wd-36(4), Kolkata] to frame the reassessment the Ld. AR submitted that in the instant case the assessee had filed the original return of income on 13.07.2013 and has shown in its Return of Income (ROI) the jurisdictional AO as ITO, Ward-40(4), Kolkata and in order to prove this fact drew our attention to page 5 of the paper book, which I note to be correct. Thereafter, according to him, there were certain developments (re-structuring of the Department) which took place as per the direction of the CBDT which can be noted from perusal of page 1 to 4 of the paper book which it is noted is a Notification No. 64/2014 [F. 2 ITA No.5/Kol/2022 Ruchi Roongta, AY: 2013-14 No. 187/40/2014 (ITA-1)]/SO2910E, dated 13.11.2014 which empowered the Ld. Pr. CIT, West Bengal & Sikkim Region to transfer jurisdiction of the assessee’s based on their Pin Code; and according to the Ld. AR, the assessee’s Pin code falls accordingly in the jurisdiction of Range-36, Kolkata. According to the Ld. AR, as per the CBDT direction/Pr. CIT’s order the ITO, Wd-36(4), Kolkata got the jurisdiction to assess the assessee; and according to him, there is no quarrel on this issue. However, according to the Ld. AR, despite there was change in jurisdiction as afore-stated, the reopening notice u/s. 148 of the Act was issued by ITO, Wd-45(4), Kolkata dated 27.03.2019 instead by the ITO, Wd-36(4), Kolkata, which impugned action of ITO, Wd-45(4), Kolkata was erroneous (refer page 9 of the paper book). According to the Ld. AR, the ITO who framed the reassessment [ITO, Wd-36(4)] had not issued notice u/s. 148 of the Act which fact is discernible from perusal of the assessment order dated 27.12.2019 wherein he had admitted of the notice issued u/s. 148 of the Act dated 27.03.2019 [refer page 9 of the paper book] which admittedly has been issued by ITO, Wd-45(4) who did not enjoy jurisdiction even as per the original return filed by the assessee in which it was shown ITO, Wd-40(4) who had the jurisdiction before the re-structuring made by CBDT order, supra. Therefore, according to the Ld. AR, the action of the ITO, Wd-36(4) to have framed the reassessment order dated 27.12.2019 without issuing the reopening notice u/s. 148 of the Act is bad in law for being without jurisdiction and, therefore, null in the eyes of law and for that he cited the following judicial precedents/decisions: (i) Smt. Smriti Kedia Vs. Union of India & Ors. 339 ITR 37 (ii) ITA No. 1835/Kol/2018 in M/s. Tirupati Balaji Traders Vs. ITO, AY 2015-16 order dated 22.03.2019 (Trib. Kol) (iii) ITA No. 89 & 90/LKW/2015 in Mohd. Rizwan Vs. ITO, AY 2010-11 order dated 16.04.2015 and (iv) West Bengal State Electricity Board Vs. DY. CIT reported in (2005) 278 ITR 0218 (Cal). 4. Per contra, the Ld. DR Shri Nicholas Murmu while opposing the contention of Ld. AR clarified that before the CBDT circular dated 13.11.2014 the jurisdiction of ITO was based on Pin Code only. According to him, after the CBDT circular of 2014, some restructuring exercises were carried out by the department and based on that there were 3 ITA No.5/Kol/2022 Ruchi Roongta, AY: 2013-14 some changes in jurisdiction. However, according to him, the issue what has to be seen is whether the assessee got proper opportunity before the AO before framing of assessment and since from a perusal of the assessment order itself it is clear that assessee has participated before the ITO, Wd-36(4) and the AO has taken into consideration the contention of the assessee and has gone through the records and thereafter has framed the reassessment order, the AO’s action cannot be faulted for non-issue of notice u/s. 148 of the Act. Therefore, according to him, the Ld. CIT(A) has confirmed the action of the AO which need no interference from my side. 5. Heard rival submissions and gone through the facts and circumstances of the case. The legal issue that has been raised by the assessee is against the action of the ITO, Ward- 36(4) to have framed the reassessment order dated 27.12.2019 without issuing notice u/s. 148 of the Act. It is discernible from the records that the assessee had filed the return of income on 13.07.2013 (refer page 5 of paper book) showing that ITO, Ward-40(4) was having original jurisdiction over the assessee to assess her income. Thereafter, the restructuring took place as per the CBDT Circular dated 30.11.2014 which is evident from the notification placed at page 1 to 4 of the paper book. As per the restructuring there was change in jurisdiction and it is noted that the assessee’s assessment has to be done by ITO, Wd-36(4) of Kolkata. However, even after transfer of jurisdiction from ITO, Ward-40(4) to ITO, Ward- 36(4), Kolkata, it is noticed that the reopening notice u/s. 148 of the Act was issued on 27.03.2019 (refer page 9 of paper book) by ITO, Wd-45(4) who did not enjoy the jurisdiction even during the period of pre-circular dated 13.11.2014; and thereafter realizing the mistake ITO has transferred the case to the ITO, Wd-36(4) who thereafter framed the reassessment dated 27.12.2019. It is clear from the perusal of the assessment order as well as from the records that ITO, Wd-36(4) has not issued any notice u/s. 148 of the Act whereas notice has been issued by ITO, Ward-45(4) dated 27.03.2019. In this admitted facts and having noticed that the ITO, Wd-36(4) had not issued notice u/s. 148 of the Act before framing the reassessment order dated 27.12.2019, I am inclined to allow the appeal of the assessee. For doing that, I rely on the decision of the Hon’ble Calcutta High court in the case of Smt. Smriti Kedia (supra) and West Bengal State Electricity Board (supra) and the Tribunal’s order cited supra. In the light of the aforesaid discussion, the impugned notice of the ITO, Wd-45(4) u/s. 148 dated 27.03.2019 (refer page 9 of paper book) who 4 ITA No.5/Kol/2022 Ruchi Roongta, AY: 2013-14 did not had jurisdiction at all is quashed and, therefore, all the consequential action is null in the eyes of law. 6. In the result, the appeal of the assessee is allowed. Order is pronounced in the open court on 31st March, 2022. Sd/- (A. T. Varkey) Judicial Member Date: 31st March, 2022 Jd (Sr. PS.) Copy of the order forwarded to: 1. Appellant – Smt. Ruchi Roongta, Suite-F, 4 th floor, Mission court, 25, R. N. Mukherjee Road, Kolkata-700 001. 2 Respondent – ITO, Ward-45(4), Kolkata. 3. 4. 5. CIT(A), NFAC, Delhi CIT , DR, ITAT, Kolkata. (sent through e-mal) /True Copy, By order, Assistant Registrar