M/S BOANG TECHNOLOGY PVT. LTD.,HARYANA V. ITO WARD 1(3) GURGAON, HARYANA

ITA 4294/DEL/2025

AI Insights

The case involves M/s Boang Technology Pvt. Ltd., which appealed against the order of the Commissioner of Income Tax (Appeals)-30, New Delhi. The primary contention was regarding the validity of the notice issued under section 143(2) of the Income Tax Act, 1961, for the assessment year 2017-18. The assessee argued that the notice was time-barred and that they had not received any notice due to a change in their registered office and email ID. The Tribunal examined the timelines and procedural compliance related to the issuance of the notice and the subsequent assessment order. The Tribunal's decision was influenced by precedents and statutory provisions that emphasized the necessity of serving a valid notice for any assessment to be considered lawful.

• Counselvise Citation: [2026] 140 COUNSELVISE.COM (IT) 839852 (ITAT-DELHI)
• Duration Of Justice: 7 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-02-2026
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2017-2018
• Appeal Filed On: 05-07-2025
• Other Referred Cases: Travel Designer India (P.) Ltd. Vs DCIT, Kunal Structure (India) (P.) Ltd. Vs DCIT, Bharat Nidhi Ltd Vs CIT, ACIT vs. Hotel Blue Moon
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KHITESH GUPTA
• Assessee Lawyers: PARIKSHIT AGARWAL
• Keywords: Set aside; Revised return; Reasonable cause; Business expenditure; Period of limitation; TDS
• Section: 144; 139; 139(5)

Judgement Text

"IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH “A”, NEW DELHI BEFORE SHRI MAHAVIR SINGH, VICE PRESIDENT AND SHRI MANISH AGARWAL, ACCOUNTANT MEMBER ITA No. 4294/Del/2025 (Asstt. Year :2017-18) M/s Boang Technology Pvt. Ltd. vs. ITO, Ward 1(3), 5th floor, IRIS Tech Park, Gurgaon. Sohna Road, Sector-48, Gurugram, Gurgaon Haryana (PAN: AACC02451N) (Appellant) (Respondent) Appellant by : Sh. Parikshit Agarwal, CA Respondent by :Sh. Khitesh Gupta, Sr. DR Date of Hearing 25.11.2025 Date of Pronouncement 23.02.2026 ORDER PER MAHAVIR SINGH, VICE PRESIDENT : This appeal by the assessee is arising out of the order of the Ld. Commissioner of Income Tax (Appeals)-30, New Delhi in Appeal No. Gurgaon-1/11285/2019-20 dated 05.12.2024. Assessment was framed by the ITO, Ward 1(3), Gurgaon for the assessment year 2017-18 u/s. 144 of the Income Tax Act, 1961 (hereinafter referred to as “the Act”) vide order dated 21.12.2019. 2. At the outset, it is noticed that the appeal is barred by limitation by 127 days and assessee explained the reasons vide condonation petition dated 23.11.2025 stating the reasons that the assessee never know about the passing of the order of the Ld. CIT(A) and he submitted the following reasons:- Printed from counselvise.com 2 | P a g e a) for the purpose of receiving the notices/ orders during the appellate proceedings, the email ID provided in Form 35 was [e-mail]. The screenshot of the email mentioned by Printed from counselvise.com 3 | P a g e therefore, had no reason to suspect that the order had been passed and communicated. 4. It was only much later, during a routine inspection of records on the Income Tax Portal, that the appellant was apprised about the passing of the impugned order by the Worthy CIT(A) dtd. 05.12.2024. The appellant immediately swung into action and filed the present appeal which got delayed by 127 days” 3. The aforesaid reasons were confronted to the Ld. Sr. DR, who could not controvert the above fact situation, hence, we find that the assessee came to know about the Ld. CIT(A)’s order dated 5.12.2024 in June, 2025 and immediately thereafter the assessee filed the appeal on 5.7.2025. We find that the reasons stated by the assessee in its condonation petition, noted above, are sufficient and reasonable cause in establishing belated filing of appeal. Hence, we condone the delay and admit the appeal of the assessee. 4. Ld. Counsel for the assessee first of all drew our attention to the revised ground no. 2 and 3 of the appeal which reads as under: “2. That on the facts, circumstances and legal position of the case, the worthy CIT(A) has erred in ignoring the fact that the notice issued by the AO u/s. 143(2) is time-barred. 3. That on the facts, circumstances and legal position of the case, the Worthy CIT(A) has erred in ignoring the fact the assessment is void for want of valid service of notice u/s. 143(2) as no such notice was served upon the appellant in accordance with law.” Printed from counselvise.com 4 | P a g e 5. Ld. Counsel for the assessee stated that the notice issued u/s. 143(2) of the Act is barred by limitation. He narrated the facts that the assessee filed its return of income for AY 2017-18 on 30.10.2017 u/s 139(1) of the Act declaring loss of Rs.542635045. This return was revised u/s 139(1) of the Act on 09.11.2017 to correct and claim loss of the refund of Income Tax (including TDS and TCS) vide e-filing of Rs. 542635045 and there was no other change in this revised return. CPC while processing the return filed by the assessee issued notice u/s. 143(1)(a) of the Act dated 31.05.2018 to which the assessee agreed and as per procedure prescribed by CPC filed rectified income tax return on 13.06.2018 at the instance of the department. While login to the income tax portal, the assessee came to know that the AO has passed the assessment order u/s. 144 of the Act for AY 2017-18 dated 21.12.2019, wherein it was seen that in the assessment order entire expenditure on sales promotion Rs. 90.74 crores has been disallowed. 6. As per the assessment order it is understood that for AY 2017-18 the case has been selected under CASS for limited scrutiny for the reason of large sale promotion expenses vis-a-vis gross receipts. Notice u/s. 143(2) of the Act has been issued on 22.09.2019 on the basis of return filed on 13.06.2018. In fact the notice u/s. 143(2) of the Act is time barred since the original return has been filed on 30.10.2017 and as per the period of limitation prescribed u/s. 143(2) of the Act notice should have been issued upto 30.09.2018. The return filed on 130.6.2018 cannot be considered for extending the period for issuance of notice u/s. 143(2) of the Act as such the assessment order passed is invalid. Further more, it is also submitted that no notice u/s. 143(2) of the Act dated 22.8.2019 was received by the assessee. The reason for such non receipt of notice was that the registered office address of the company has changed from the earlier principal place at Unit No 651-655, Sixth Floor, JMD Megapolis, Sohna Road, Sector-48, Gurgaon – 122018 to 7th floor, Block-I, Vatika Business Park, Sohna Printed from counselvise.com 5 | P a g e Road, Sector-49, Gurgaon-122018 which was clearly stated in the ITR filed for FY 2018-19. Moreover, the name of the company was changed from Oppo Mobiles (NR) Private Limited to Boang Technology Private Limited in April, 2019 and due to such name change email id of the company was also changed. The updated email id of the company has been stated in the latest ITR. Due to the above reason, the notice was not received by the assessee. Therefore, the assessment order has been passed without serving the notice on the assessee company. Even otherwise, the AO has completed the assessment u/s. 144 of the Act wherein he has disallowed entire expenditure on sales and business promotion of Rs. 90.74 crores without stating any reason or section under which it has been disallowed and without appreciating the fact that the sales of the assessee company during the year was Rs. 872.16 crores. The disallowance of genuine business expenditure has resulted into huge demand of Rs. 16.18 crores. Against the above, assessee preferred the appeal before the CIT(A), who vide his impugned order set aside the appeal before the AO for fresh adjudication. Aggrieved, Assessee is in appeal before us. 7. We have heard both the parties and perused the records. We note that assessee filed the return for year under consideration on 30.10.2017 which was revised on 9.11.2017 due to the reason that credit for prepaid taxes were not stated in the original return and the same was corrected in revised return without changing any other thing including loss amount. We further note that CPC while processing the return filed by the assessee issued notice u/s. 143(1)(a) dated 31.05.2018 to which the assessee agreed and as per procedure prescribed by CPC, the assessee had rectified return on 13.06.2018 to incorporate the points raised by the CPC so that the return can be processed and the assessee can get the refund and also that the return is not invalidated by CPC. Therefore, the return has been rectified at the instance of CPC to comply with the notice issued by CPC. The return was processed by CPC by intimation Printed from counselvise.com 6 | P a g e order u/s 143(1) dated 22.12.2018. As per the provisions of section 143(3), for making the assessment u/s 143(3), AO was required to serve the notice u/s 143(2) on the assessee within 6 months from the end of the financial year in which return is furnished. In the present case, notice u/s. 143(2) for AY 2017-18 was issued on 22.09.2019, considering the date of filing of return to be 13.06.2018 i.e. date of filing revised return. It is further noticed that it has been stated in the assessment order that \"The assessee has filed its Return of income of income for the AY 2017-18 on 13.06.2018 declaring total loss of Rs. 54,25,99,356/” which is incorrect since the ITR was filed on 30.10.2017. As per provisions of section of the Income Tax Act 1961, notice u/s 143(2) can be issued upto the period from the end of the financial year in which the return has been filed. For the sake of clarity, the provisions of section 143(2) are reproduced hereunder:- \"143(2) Where a return has been furnished under section 139, or in response to a notice under sub-section (1) of section 142, the Assessing Officer or the prescribed income-tax authority, as the case may be, it, considers it necessary or expedient to ensure that the assessee has not understated the income or has not computed excessive loss or has not under-paid the tax in any manner, shall serve on the assessee a notice requiring him, on a date to be specified therein, either to attend the office of the Assessing Officer or to produce, or cause to be produced before the Assessing Officer any evidence on which the assessee may rely in support of the return: Provided that no notice under this sub-section shall be served on the assessee after the expiry of six months from the end of the financial year in which the return is furnished\". 8. We note that the provisions of section 139(5) for revised return are reproduced as under: \"139(5) If any person, having furnished a return under sub-section (1) or sub-section (4), discovers any omission or any wrong statement therein, he may furnish a revised return at any time before the expiry of one year Printed from counselvise.com 7 | P a g e from the end of the relevant assessment year or before the completion of the assessment, whichever is earlier\". 9. It has been held in various judgements, that the revised return filed steps into the shoes of Original Return and deemed to have been filed from the date of original return. This is important from the view of carrying forward of losses and other provisions of the Act providing certain beneficial provisions on filing of ITR within due date. In this case even the assessee has not opted to file rectified ITR on dated 13.06.2018 at its own but only for compliance of notice of CPC, which is mandatory and therefore return was deemed to have been filed on 31.10.2017. 10. It is also noted that in case of Travel Designer India (P.) Ltd. Vs DCIT [2020] 113 taxmann.com 575 (Gujarat), Honorable High Court held that Date of filing of original return under section 139(1) has to be considered for the purpose of computing period of limitation under section 143(2) and not date on which defects actually came to be removed under section 139(9). In para 19 of the said judgement, it has been held that: \"In the facts of the present case, as discussed earlier, the petitioner filed its return of income under sub-section (1) of section 139 of the Act on 29.11.2016. Since the return was defective, the petitioner was called upon to remove such defects, which came to be removed on 19.07.2017, that is, within the time allowed by the Assessing Officer. Therefore, upon such defects being removed, the return would relate back to the date of filing of the original return, that is, 29.11.2016 and consequently, the limitation for issuance of notice under sub-section (2) of section 143 of the Act would be 30.09.2017, viz. six months from the end of the financial year in which the return under sub-section (1) of section 139 came to be filed. In the present case, it is an admitted position that the impugned notice under sub-section (2) of section 143 of the Act has been issued on 11.08.2017, which is much beyond the period of limitation for issuance of such notice as envisaged under that sub-section. The impugned notice, therefore, is clearly barred by limitation and cannot be sustained.” Printed from counselvise.com 8 | P a g e 11. Similar views has been expressed in Kunal Structure (India) (P.) Ltd. Vs DCIT [2020] 113 taxmann.com 577 (Gujarat) by honourable High Court. 12. Further, in case of Bharat Nidhi Ltd Vs CIT [2007] 165 Taxman 314/306 ITR 230 (Delhi), Honorable Delhi High Court held that \"From the facts of the case as they appear on record, there cannot be any doubt whatsoever that the assessee had made an error which was in the nature of a defect as explained by the Kerala High Court and that defect was removed by filing a fresh return signed by the Managing Director of the Assessee. The return would then relate back to the original filing date\" 13. In view of the aforesaid discussions and respectfully following the precedents, we note that in the instant case the original return was filed on 31.10.2017 and rectified return was filed on 13.06.2018 to remove the deficiencies pointed out by CPC, notice u/s 143(2) can be issued upto 30.09.2018 and therefore notice issued on 22.09.2019 is time barred and thus not a valid notice and consequently the assessment order passed in the present case is void ab inito and thus deserve to be quashed on this count. We hold and direct accordingly. 14. As regards ground no. 3 relating to non-receipt of notice u/s. 143(2) is concerned, we note that as per provisions of section 143(3), for making assessment u/s 143(3), AO is required to serve on to the assessee a notice u/s 143(2) within 6 months from the end of the financial year in which ITR is furnished. In this case no notice was ever served on to the assessee within 6 months even by 30.09.2019. It is noted that assessee company had shifted its registered office from Unit No.651-655, Sixth Floor JMD Megapolis, Sohna Road, Sector-48, Gurgaon-122018 to 7th Floor, Block-l, Vatika Business Park, Sohna Road, Sector-49, Gurgaon-122018 w.e.f. 30.05.2019 and the same was clearly stated in the ITR filed for AY 2019-20 on 24.10.2019. Moreover the Printed from counselvise.com 9 | P a g e name of the company was changed from Oppo Mobiles (NR) Private Limited to Boang Technology Private Limited in April 2019 and due to such name change email ID of the company was also changed. The updated email ID of the company was mentioned in the latest return and in the profile section of the portal. Due to which neither notice was received over email nor physically by the assessee. It is settled law that it is mandatory to serve notice u/s 143(2) on the assessee before making any assessment, otherwise assessment order so passed without serving notice u/s. 143(2) is invalid. The Hon’ble Apex Court in the case of ACIT vs. Hotel Blue Moon, 324 ITR 372 (2010) (SC) has held that in the absence of the notice u/s. 143(2) of the Act the assessment framed by the Assessing Officer is liable to be quashed. In view of above, it is abundantly clear that the notice u/s. 143(2) has not been served on the assessee, which is mandatory and thus, the consequent assessment order is void ab inito and deserve to be quashed. We hold and direct accordingly. 15. In the result, the captioned appeal stands allowed in the aforesaid manner. Order pronounced in the Open Court on 23-2-2026. Sd/- Sd/- (MANISH AGARWAL) (MAHAVIR SINGH) ACCOUNTANT MEMBER VICE PRESIDENT SRBhatnaggar Copy forwarded to: - 1. Appellant 2. Respondent 3. DIT 4. CIT (A) 5. DR, ITAT Assistant Registrar, ITAT, Delhi Benches Printed from counselvise.com "