Kalpana Agarwal, Kolkata V. ITO, Ward-11(1), Kolkata, Kolkata

ITA 538/KOL/2022

AI Insights

The case involves Kalpana Agarwal, who appealed against the order of the Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi, concerning the assessment year 2013-14. The primary contention was the addition of Rs.12,58,188 to her income, which she challenged. Additionally, she raised an issue regarding the lack of jurisdiction of the ITO who passed the assessment order. The Tribunal admitted the additional ground of appeal concerning jurisdiction and, after reviewing the submissions and relevant legal precedents, concluded that the assessment order was passed without proper jurisdiction, leading to its quashing.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 129107 (ITAT-KOLKATA)
• Duration Of Justice: 7 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-05-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 02-05-2023
• Assessment Year: 2013-2014
• Appeal Filed On: 20-09-2022
• Other Referred Cases: Kusum Goyal \/vs.\- ITO, ACIT, Circle-29, Kolkata \/vs.- Shri Debabrata Kayal
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 143(3); 143(2); 139(1)

Judgement Text

ITA No. 538/KOL/2022 Assessment Year : 2013-2014 Kalpana Agarwal 1 IN THE INCOME TAX APPELLATE TRIBUNAL, ‘SMC’ BENCH, KOLKATA Before Shri Rajpal Yadav, Vice-President & Shri Rajesh Kumar, Accountant Member I.T.A. No. 538/KOL/2022 Assessment Year: 2013-2014 Kalpana Agarwal,...................................Appellant Pushpa Bhawan, 67/2, Ballygunj Circular Road, Kolkata-700019 [PAN: ADCPA3815C] -Vs.- Income Tax Officer,................................Respondent Ward-11(1), Kolkata, Aayakar Bhawan, P-7, Chowringhee Square, Kolkata-700069 Appearances by: Shri K.M. Roy, A.R., appeared on behalf of the assesseee Shri P.P. Barman, Addl. CIT, appeared on behalf of the Revenue Date of concluding the hearing : May 03, 2023 Date of pronouncing the order : May 04, 2023 O R D E R Per Shri Rajpal Yadav, Vice-President (KZ):- The assessee is in appeal before us against the order of ld. Commissioner of Income Tax (Appeals), National ITA No. 538/KOL/2022 Assessment Year : 2013-2014 Kalpana Agarwal 2 Faceless Appeal Centre (NFAC), Delhi dated 10 th August, 2022 passed for assessment year 2013-14. 2. Originally the assessee has taken three grounds of appeal. In Ground No. 1, she has challenged the addition of Rs.12,58,188/-. During the course of hearing, on earlier occasion the assessee has filed an application for permission to raise additional ground of appeal. Her application was allowed and she was permitted to raise additional ground of appeal. The order of the ITAT dated 12.01.2023 reads as under:- “12.01.2023: The assessee is in appeal before the Tribunal against the order of ld. Commissioner of Income Tax (Appeals), National Faceless Appeal Centre (NFAC), Delhi dated 10.08.2022 passed for Assessment Year 2013-14. 2. Originally the assessee has taken four grounds of appeal, out of which Ground No. 1 is the substantial ground of appeal, whereby the assessee has challenged confirmation of addition of Rs.12,58,188/-. The ld. Counsel for the assessee submitted that assessee has raised an additional ground of appeal, which reads as under:- “For that the assessment order is bad in the eyes of law in the absence of issue of notice u/s 143(2) by the Assessing Officer, i.e. ITO- Ward-30(1), Kolkata, passing the order and accordingly the order is unsustainable”. 3. The ld. Counsel for the assessee submitted that territorial jurisdiction over the assessee is of ITO, Ward- 11(1) as per the PAN data. The original notice for scrutinizing the return issued under section 143(2) was by ITO, Ward-11(1), but ultimately the assessment order has been passed by ITO, Ward-30(1), Kolkata. Therefore, according to him, this assessment order is void ab initio because it has been passed by an Assessing Officer, who ITA No. 538/KOL/2022 Assessment Year : 2013-2014 Kalpana Agarwal 3 was not having territorial jurisdiction over the assessee. In order to buttress this additional ground of appeal, ld. Counsel for the assessee submitted that assessee has tried her best to obtain necessary details from the Department. Her Authorized Representative had visited 3- 4 times to the ld. Assessing Officer for inspection of the assessment order, but the assessment record was not traceable being an old one. 4. We find an inherent contradiction between taking cognizance of return for passing a scrutiny assessment under section 143(3) vis-a-vis ultimately passing of the assessment order by the ld. Income Tax Officer. It is very difficult for us to determine whether jurisdiction over the assessee was changed during the pendency of assessment proceeding because nothing is discernable in the assessment order to this effect. Therefore, we deem it appropriate to admit this ground of appeal and direct the ld. Departmental Representative to call for a remand report from the ld. Assessing Officer justifying the jurisdiction over the assessee by both the ITOs i.e. for the purpose of initiation of scrutiny assessment by issuance of a notice under section 143(2) within the time limit available in the proviso under section 143(2) as well as ultimate passing of the assessment order. This exercise be completed before the next date of hearing. 5. Hearing is adjourned to 6 th of March, 2023. Copy of this order-sheet be supplied to both the parties for compliance. Sd/- Sd/- Girish Agrawal Rajpal Yadav Accountant Member Vice-President (KZ)” 3. In response to this Interim Order, the ld. Assessing Officer has sent his comments vide letter dated 05.04.2023. It is worth to take note of this letter, which reads as under:- ITA No. 538/KOL/2022 Assessment Year : 2013-2014 Kalpana Agarwal 4 4. In the light of above development, let us consider the facts and circumstances. A perusal of the assessment order would reveal that the assesese has filed her return ITA No. 538/KOL/2022 Assessment Year : 2013-2014 Kalpana Agarwal 5 of income on 31.03.2014 under section 139(1) of the Income Tax Act declaring total income of Rs.6,49,200/-. The assessment order has been passed on 29.03.2016 by ITO, Ward-30(1), Kolkata. According to the additional ground of appeal, the assessee has submitted that jurisdiction over her rest with ITO, Ward-11(1), Kolkata as per the PAN data. Since assessment order has been passed by the ITO, Ward-30(1), Kolkata, therefore, this assessment order is without jurisdiction. 5. We have put a specific question to the Revenue and sought the report from the ld. Assessing Officer. A perusal of the report sent by the ld. Assessing Officer would reveal that jurisdiction over the assessee is of ITO, Ward-11(1) and not with ITO, Ward-30(1). Ld. Counsel for the assessee during the course of hearing put reliance upon the judgment of the Hon’ble Calcutta High Court in the case of Kusum Goyal –vs.- ITO rendered in G.A. No. 81 of 2010 with Writ Petition No. 1229 of 2009. He also put reliance upon the order of the ITAT, Kolkata ‘C’ Bench dated 11.02.2022 in the case of ACIT, Circle- 29, Kolkata –vs.- Shri Debabrata Kayal in ITA No. 06/KOL/2021. He placed on record copies of both these judgments but without going much in these propositions, we are satisfied that assessment order has been passed by the ld. Assessing Officer, who was not having territorial justification over the assessee, hence the ITA No. 538/KOL/2022 Assessment Year : 2013-2014 Kalpana Agarwal 6 assessment is void ab initio. Accordingly, we quash the assessment order. 6. In the result, the appeal of the assessee is allowed. Order pronounced in the open Court on May 4 th , 2023. Sd/- Sd/- (Rajesh Kumar) (Rajpal Yadav) Accountant Member Vice-President(KZ) Kolkata, the 4 th day of May, 2023 Copies to : (1) Kalpana Agarwal, Pushpa Bhawan, 67/2, Ballygunj Circular Road, Kolkata-700019 (2) Income Tax Officer, Ward-11(1), Kolkata, Aayakar Bhawan, P-7, Chowringhee Square, Kolkata-700069 (3) Commissioner of Income Tax (Appeals), National Faceless Appeal Centre (NFAC), Delhi; (4) Commissioner of Income Tax , (5) The Departmental Representative (6) Guard File TRUE COPY By order Assistant Registrar Income Tax Appellate Tribunal, Kolkata Benches, Kolkata Laha/Sr. P.S.