KHEMKA MINERALS PVT. LTD., ,KOLKATA V. ITO, WARD 12(2), KOLKATA

ITA 241/KOL/2025

AI Insights

The case involves Khemka Minerals Private Limited appealing against an order passed by the CIT(A), National Faceless Appeal Centre, Delhi, for the assessment year 2012-2013. The primary contention was the contradictory mention of sections 144 and 143(3) of the Income Tax Act, 1961 in the assessment order, which led to confusion regarding the nature of the assessment—whether it was a 'Best Judgment Assessment' under section 144 or a regular assessment under section 143(3). The assessee argued that the assessment should have been conducted under section 143(3) due to their full cooperation, whereas section 144 applies in cases of non-cooperation. The Tribunal found that the mention of both sections was a typographical error and not a substantive defect, thus restoring the matter to the Assessing Officer for a proper assessment.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 361022 (ITAT-KOLKATA)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-05-2025
• Appeal Filed By: Assessee
• Order Result: Allowed
• Assessment Year: misc
• Other Referred Cases: Shivkumar Agrawal vs. [1990] 186 ITR 734 (Orissa)
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MONALISA PAL MUKHERJEE
• Assessee Lawyers: ANIL KOCHAR
• Keywords: Set aside
• Section: 144; 143(3); 142(1)

Judgement Text

" IN THE INCOME TAX APPELLATE TRIBUNAL “B” BENCH, KOLKATA BEFORE SHRI GEORGE MATHAN, JUDICIAL MEMBER AND SHRI SANJAY AWASTHI, ACCOUNTANT MEMBER ITA No.241/KOL/2025 (निर्धारण वर्ा /Assessment Year : 2012-2013) Khemka Minerals Private Limited 1st Floor, Suit No.IC, Rajeswari Apartment, 113, Southern Avenue, Kalighat, Kolkata Vs ITO, Ward-12(2), Kolkata PAN No. :AADCK 6012 E (अपीलधर्थी /Appellant) .. (प्रत्यर्थी / Respondent) निर्धाररती की ओर से /Assessee by : Shri Anil Kochar, Advocate रधजस्व की ओर से /Revenue by : Ms Monalisa Pal Mukherjee, Sr.DR सुनवाई की तारीख / Date of Hearing : 21/05/2025 घोषणा की तारीख/Date of Pronouncement : 21/05/2025 आदेश / O R D E R Per Bench : This is an appeal filed by the assessee against the order passed by the ld. CIT(A), National Faceless Appeal Centre (NFAC), Delhi, dated 10.01.2025 in DIN & Order No.ITBA/NFAC/S/250/2024-25/1072082762(1) for the assessment year 2012-2013. 2. Ms. Monalisa Pal Mukherjee, Sr. DR appeared on behalf of the revenue and Shri Anil Kochar, Advocate appeared on behalf of the assessee. 3. The ld AR has filed additional grounds which read as follows: Additional Grounds 1. For that the Order passed by the Assessing Officer u/s 144/143(3) of the Income Tax Act, 1961 is bad-in-law. 2. For that the Order passed by the Assessing Officer mentioning Sec.1441143(3) of the Act both being contradictory in nature in as much as ITANo.241/Kol/2025 2 whereas the former is with regard to 'Assessment' the latter is with regard to 'Best Judgment Assessment' is bad-in-law. 3. For that the provision of Sec.144 and Sec.143(3) are mutually exclusive and cannot be applied jointly since Sec.144 relates to failure to respond to Notices u/s 142(1) and/or 143(2) whereas Sec.143(3) of the Act applies when complied with. 4. In the additional grounds, the assessee has taken a stand that the AO has mentioned that the assessment order is under sections 144/143(3) of the Act. It was submitted by the ld AR that the provisions of Section 144 of the Act are contradictory to the provisions of section 143(3) of the Act. The assessment needed to be framed u/s.143(3) of the Act when there has been full cooperation by the assessee, whereas for framing the assessment u/s.144 of the Act, the conditions mentioned in the provisions of Section 144(1) of the Act were required to be met inasmuch as there should be non- cooperation from the assessee. The assessment order does not talk of such non-cooperation. It was the submission that as two contradictory sections have been referred to in the said assessment order then the assessment order is liable to be quashed. 5. In reply, ld. Sr. DR vehemently supported the orders of the Assessing Officer and ld.CIT(A). It was the submission that the ld. CIT(A) has restored the issues to the file of Assessing Officer for passing proper assessment order. It was also the submission that mentioning of both sections was only a typographical error. 6. We have considered the rival submissions. A perusal of the assessment order clearly shows that in the assessment order, the AO has categorically mentioned that the assessee has not appeared with his books of account, bank statements, copies of the return and the income tax ITANo.241/Kol/2025 3 returns of the directors to answer various issues raised by the assessee. A further perusal of the assessment order, thus, clearly shows that the assessee has provided some details but not all. The issue in this appeal is with regard to the share application money received. The names and addresses have been provided but the persons have not appeared even though the notices u/s.131 of the Act have been issued. Clause 12 of the assessment order admittedly mentions that the Section under which the assessment is being made is “Section 144/143(3) of the Act”. The said two sections, admittedly, are contrary to each other. It is felt that the non- appearance of the summoned persons cannot be treated as a failure on the part of the assessee. Admittedly, there is an error in the assessment order insofar as the section which is being relied upon by the Assessing Officer is not clearly mentioned. The wrong mentioning of a section does not make an assessment order invalid. At best, it is a curable defect. This being so, we are of view that in view of the principles laid down by the Hon’ble Orissa High Court in the case of Shivkumar Agrawal, reported in [1990] 186 ITR 734 (Orissa), the issues must be required to be restored to the file of Assessing Officer to the point where the curable irregularity has taken place and we do so. Further a perusal of the order of the ld.CIT(A) also shows that he has restored the issues to the file of Assessing Officer for de novo assessment. This being so, in the interest of justice, the order of the ld. CIT(A) is set aside and the issues in this appeal are restored to the file of Assessing Officer for readjudication after rectifying the defects, if any, and granting the assessee adequate opportunities to substantiate its case. ITANo.241/Kol/2025 4 7. In the result, appeal of the assessee is partly allowed for statistical purposes. Order dictated and pronounced in the open court on 21/05/2025. Sd/- (SANJAY AWASTHI) Sd/- (GEORGE MATHAN) लेखा सदस्य/ ACCOUNTANT MEMBER न्यधनयक सदस्य / JUDICIAL MEMBER कोलकाता Kolkata; ददनाांक Dated 21/05/2025 Prakash Kumar Mishra, Sr.P.S. आदेश की प्रनतललपप अग्रेपर्त/Copy of the Order forwarded to : आदेशधिुसधर/ BY ORDER, (Assistant Registrar) Income Tax Appellate Tribunal, Kolkata 1. अपीलार्थी / The Appellant- 2. प्रत्यर्थी / The Respondent- 3. आयकर आयुक्त(अपील) / The CIT(A), 4. आयकर आयुक्त / CIT 5. विभागीय प्रविविवि, आयकर अपीलीय अविकरण, कोलकाता / DR, ITAT, Kolkata 6. गार्ड फाईल / Guard file. सत्यापपत प्रतत //True Copy// "