Naveed Arshad, Kolkata V. ITO, Kolkata

ITA 784/KOL/2023

• Counselvise Citation: [2023] 101 COUNSELVISE.COM (IT) 9683 (ITAT-KOLKATA)
• Duration Of Justice: 4 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 29-10-2023
• Assessment Year: 2013-2014
• Appeal Filed On: 27-07-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 147; 148; 144

Judgement Text

आयकर अपीलीय अधिकरण कोलकाता 'एसएमसी' पीठ, कोलकाता म ें IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA ‘SMC’ BENCH, KOLKATA श्री राज े श क ु मार, ल े खा सदस्य क े समक्ष Before SRI RAJESH KUMAR, ACCOUNTANT MEMBER I.T.A. No.: 784/KOL/2023 Assessment Year: 2013-14 Naveed Arshad.........................................................Appellant [PAN: ALCPA 9353 P] Vs. ITO, Ward-32(4), Kolkata......................................Respondent Appearances: Assessee represented by: Sh. Manoj Kataruka, Adv. Department represented by: Smt. Archana Gupta, Addl. CIT (D/R). Date of concluding the hearing : October 31 st , 2023 Date of pronouncing the order : December 1 st , 2023 ORDER Per Rajesh Kumar, Accountant Member: This is an appeal preferred by the assessee against the order of Learned Commissioner of Income-tax (Appeals)-NFAC, Delhi [hereinafter referred to Ld. ‘CIT(A)’] dated 30.06.2023 for the Assessment Year (in short ‘AY’) 2013-14. 2. The assessee has challenged the order of Ld. CIT(A) by raising regular grounds in the memorandum of appeal as well as by raising additional grounds. We would like to adjudicate first the legal issue I.T.A. No.: 784/KOL/2023 Assessment Year: 2013-14 Naveed Arshad. Page 2 of 5 raised in the additional ground and the same is reproduced as under: “1) That on the facts and in the circumstances of the case, the assessment order passed u/s 144 r.w.s. 147 of the I.T. Act, 1961 is invalid due to the absence of Document Identification Number (DIN).” 3. The facts in brief are that the assessee filed the return of income on 01.10.2013 declaring total income of Rs. 2,04,940/-. Thereafter, the case of the assessee was reopened u/s 147 of the Act by issuing notice u/s 148 of the Act on 29.03.2019 after obtaining approval u/s 151(1) of the Act after the AO received information from the DDI (I&CI)-2, Kolkata that the assessee has deposited during the previous year cash to the tune of Rs. 1,25,75,000/- in a joint bank account no. 9110110065517514 maintained with Axis Bank, Central Avenue Branch, Kolkata. Finally, the assessment was framed by making an addition of Rs. 24,46,400/- towards undisclosed business income and Rs. 29,100/- as undisclosed income from other sources thereby assessing the total income at Rs. 26,80,460/- vide order dated 24.12.2019 passed u/s 144 r.w.s. 147 of the Act. 4. Ld. Counsel for the assessee at the outset submitted that the additional ground raised qua non-mentioning of DIN is a legal issue and goes to the root of the matter. Ld. Counsel for the assessee submitted that the issue raised by way of additional ground does not involve any further verification of facts at the level of the AO therefore, the same may kindly be admitted in view of the decision of Hon'ble Apex Court in the case of National Thermal Power Co. Ltd. Vs. CIT [1998] 229 ITR 383 (SC) and Jute Corporation of India Ltd. Vs. CIT [1991] 187 ITR 688 (SC). I.T.A. No.: 784/KOL/2023 Assessment Year: 2013-14 Naveed Arshad. Page 3 of 5 5. Ld. D/R on the other hand, submitted that the assessee has not raised this issue either before the AO or before Ld. CIT(A) and therefore, the same cannot be raised at this point of time. 6. After hearing the rival contentions and perusing the material on record, we find that the issue raised is purely a legal issue that order passed u/s 144 r.w.s. 147 of the Act in absence of DIN is illegal and has to be quashed. We note that the assessee is at liberty to raise this legal issue before us and accordingly, we admit this ground for adjudication. 7. Ld. Counsel for the assessee vehemently submitted before the Bench that the order passed by the AO u/s 144 r.w.s. 147 of the Act dated 24.12.2019 is not bearing the DIN which mandatory requirement in terms of the Circular No. 19/2019 dated 14.08.2019 and therefore, the order passed by the AO is invalid and has to be quashed. The case of the assessee finds support from the decision of the coordinate bench in the case of Tata Medical Centre Trust Vs CIT(E) ITA No. 238/Kol/2021 A.Y. 2016-17 order dated 18.07.2022. The ld. AR therefore prayed that the order passed by the AO is non-est and invalid in the eyes of law. The ld. DR on the other hand argued that the defect as pointed out by the ld. Counsel of the assessee is curable and can be taken care of it the appeal is restored to the file of the AO. 8. After hearing the rival contentions and perusing the facts on records, we find that there is no dispute as to the fact that DIN was not mentioned in the assessment framed by the AO which is in violation of CBDT Circular No. 19/2019 dated 14.08.2019. The I.T.A. No.: 784/KOL/2023 Assessment Year: 2013-14 Naveed Arshad. Page 4 of 5 Coordinate bench in the case of Tata Medical Centre Trust Vs CIT(E) (supra) has considered the above circular while passing the decision and held that order passed sans DIN is invalid and non- est. Considering these facts and circumstances, we are inclined to allow the additional ground raised by the assessee. 9. In the result, the appeal filed by the assessee is allowed. Kolkata, the 1 st December, 2023. Sd/- [Rajesh Kumar] Accountant Member Dated: 01.12.2023 Bidhan (P.S.) I.T.A. No.: 784/KOL/2023 Assessment Year: 2013-14 Naveed Arshad. Page 5 of 5 Copy of the order forwarded to: 1. Naveed Arshad, Sukh Sadan, Flat No. 8D, 52-B, Shakespeare Sarani, Kolkata-700 017. 2. ITO, Ward-32(4), Kolkata. 3. CIT(A)-NFAC, Delhi. 4. CIT- 5. CIT(DR), Kolkata Benches, Kolkata. //True copy // By order Assistant Registrar ITAT, Kolkata Benches Kolkata