JAGDISH PRASAD AGARWALA,KOLKATA V. I.T.O., WARD - 44(1), KOLKATA

MA 49/KOL/2025

AI Insights

The case involves Jagdish Prasad Agarwala, the assessee, who filed a Miscellaneous Application seeking rectification of an earlier order concerning the assessment year 2018-19. The original appeal allowed the assessee's legal challenge regarding the timeliness of a notice under section 143(2) of the Income Tax Act, which was not issued within the statutory period. However, the Tribunal's initial order did not address other legal and merit-based issues raised in the appeal. The assessee argued that these omissions were significant and requested their inclusion in the final order. The Departmental Representative contended that since the primary legal issue was resolved in favor of the assessee, the other grounds did not require adjudication. The Tribunal, after reviewing the submissions and the relevant legal provisions, agreed with the assessee and modified the order to include the previously omitted issues.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 776314 (ITAT-KOLKATA)
• Duration Of Justice: 5 month(s) 5 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 17-09-2025
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2018-2019
• Appeal Filed On: 11-04-2025
• Other Referred Cases: CIT Vs Laxman Das Khandelwal [2019] 108 taxmann.com 183 (SC)
• Laws Referred To: Income Tax Act
• Court: TRIBUNAL
• Department Lawyers: SUBRATA AICH
• Assessee Lawyers: S.M. SURANA

Judgement Text

" IN THE INCOME TAX APPELLATE TRIBUNAL “C” BENCH, KOLKATA BEFORE SHRI RAJESH KUMAR, AM AND SHRI PRADIP KUMAR CHOUBEY, JM MA No. 49/KOL/2025 (Arising in ITA No. 1798/Kol/2024 for A.Y. 2018-19) Jagdish Prasad Agarwala E-126, Atmosphere, 1001A, E.M. Bypass, Govinda Khatick Road, Kolkata-700046, West Bengal Vs ITO, Ward-44(1) Income Tax Office, 3, Govt. Place (West), Kolkata-700001 West Bengal अपीलार्थी/ (Applicant) प्रत्‍ यर्थी/ (Respondent) Assessee by : Shri S.M. Surana, AR Revenue by : Shri Subrata Aich, DR सुनवाई की तारीख/Date of Hearing : 12.09.2025 घोषणा की तारीख /Date of Pronouncement : 17.09.2025 आदेश/O R D E R Per Rajesh Kumar, AM: By virtue of this Miscealleneous Application, the assessee seeks rectification of the order passed in IT no.1798/KOL/2024 for A.Y. 2018-19, order dated 17.03.2025. 02. The ld. Counsel for the assessee submitted that the appeal of the assessee has been allowed on legal issue qua notice u/s 143(2) of the Act having not been issued beyond the time framed specified under the Act and therefore, same was held to be barred by limitation. However, the ld. Counsel for the assessee submitted that the assessee has raised various other legal issues and also argued the appeal on merit from ground no.3 to 17, which were not adjudicated by the Printed from counselvise.com Page | 2 MA No. 49/KOL/2025 Jagdish Prasad Agarwala; A.Y. 2018-19 bench. These grounds were on legal issues as well as on merit. The ld. Counsel for the assessee submitted that all these grounds are vehemently argued however, these were not adjudicated by the Bench in the order passed. Therefore, the order dated 17.03.2025 may kindly be rectified/ modified. 03. The ld. DR on the other hand submitted that the appeal of the assessee has been allowed on legal issue. Therefore, there is no requirement of adjudicating the other grounds and thus, the Miscellaneous Application of the assessee may kindly be dismissed. 04. After hearing the rival contentions and perusing the materials available on record, we find that undisputedly the appeal was argued on legal issue as well as on merit. However. In the order passed by the Bench only on legal issue of 143(2) of the Act was decided and other issues and arguments were omitted to be mentioned. Therefore we find merit in the miscellaneous application filed by the assessee. Accordingly, the para no.6 of the order is modified and substituted with following para no.6: “6. The ld. AR vehemently submitted before us that the notice u/s 143(2) of the Act which was issued on 16.01.2023, was beyond the permissible time limit specified in first proviso to Section 143(2) of the Act. The ld. AR submitted that prior to 01.04.2021, the time given for issuance of notice was 6 months, however, the same was substituted by three months by Finance Act, 2021, with effect from 01.04.2021. Therefore, the notice has to be issued within a period of three months from the end of the financial year in which the return of income was filed by the assessee. In the present case, the return of income was filed by the assessee on 25.03.2022. The ld. Counsel for the assessee therefore submitted that the financial year ended on 31.03.2022 and three months in terms of first proviso to Section 143(2) expired on 30.06.2022, and accordingly, the notice u/s 143(2) of the Act was barred by limitation. The ld. AR while strongly assailing the conclusion drawn by the ld. CIT (A) to the fact that the notice issued beyond the permissible time limit under first proviso to Section 143(2) of the Act is curable defect which has taken care of the provisions of Section 292BB of the Act as assessee has also participated in the assessment proceedings. The ld. AR submitted that the ld. CIT (A) relied on the decision of CIT Vs Laxman Das Printed from counselvise.com Page | 3 MA No. 49/KOL/2025 Jagdish Prasad Agarwala; A.Y. 2018-19 Khandelwal [2019] 108 taxmann.com 183 (SC), wherein it was held by the Hon'ble Supreme Court that for section 292BB to apply, section 143(2) notice must have emanated from department and it is only infirmities in manner of service of notice that section seeks to cure and it is not intended to cure complete absence of notice itself. The ld. AR submitted that in the said decision the Hon'ble Apex Court has held if the notice emanated from the department, then the only service of notice is taken care of by the provisions of Section 292BB of the Act and not the delay issuance of notice after the timeline provided under the first proviso to Section 143(2) of the Act. Therefore, the finding of the ld. CIT (A) are completely misplaced and require to be reversed. The ld. Counsel for the assessee also argued at length on other legal issues as well as on merit of the case by referring to various documents in the Paper Book and ground no.3 to 17 and prayed that even on these issues, the appeal of the assessee deserves to be allowed.” 05. In the result, the Miscealleneous Application of the assessee is allowed. Order pronounced in the open court on 17.09.2025. Sd/- Sd/- (PRADIP KUMAR CHOUBEY) (RAJESH KUMAR) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) Kolkata, Dated:17.09.2025 Sudip Sarkar, Sr.PS Copy of the Order forwarded to: 1. The Appellant 2. The Respondent 3. CIT 4. DR, ITAT, 5. Guard file. BY ORDER, True Copy// Sr. Private Secretary/ Asst. Registrar Income Tax Appellate Tribunal, Kolkata Printed from counselvise.com "