PRAMOD LAKRA, DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE 11(1), KOLKATA, KOLKATA V. M/S. AMICUS HEALTHCARE SERVICES & SOLUTIONS PVT. LTD. , KOLKATA

ITA 2572/KOL/2024

AI Insights

The case involves the Deputy Commissioner of Income Tax, Circle 11(1), Kolkata as the appellant and M/s Amicus Healthcare Services & Solutions Pvt. Ltd. as the respondent. The core issue was the addition of Rs. 60,00,000 as share application money under section 68 of the Income Tax Act, which the Assessing Officer (AO) claimed was not satisfactorily explained. The respondent challenged the reassessment order on the grounds of jurisdiction and procedural lapses, specifically the non-issuance of a notice under section 143(2) after the initiation of proceedings through a notice under section 148. The CIT(A) found merit in the respondent's arguments and set aside the AO's order, leading to the Revenue's appeal to the ITAT.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 707097 (ITAT-KOLKATA)
• Duration Of Justice: 6 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-07-2025
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2013-2014
• Appeal Filed On: 17-12-2024
• Other Referred Cases: Pr. CIT Vs. Swati Bajaj, Pr.CIT(Central)-1, Kolkata vs NRA Iron & Steel Pvt. Ltd., Pr. CIT2, Kolkata(C)-2, Kolkata Vs M/s BST Infratech Ltd., Sumati Dayal v. CIT, CIT Vs. Durga Prasad More, Asstt. CIT Vs. Hotel Blue Moon, Pr. CIT Vs. Shri Jai Shiv Shankar Traders (P.) Ltd, CIT v. Rajeev Sharma, CIT v. Salarpur Cold Storage (P.) Ltd.
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ISSUING NOTICE US WOULD NOT
• Keywords: Set aside; Opportunity of being heard; Reassessment proceedings; Tax effect
• Section: 148

Judgement Text

"IN THE INCOME TAX APPELLATE TRIBUNAL “B” BENCH”, KOLKATA SHRI GEORGE MATHAN, JUDICIAL MEMBER SHRI SANJAY AWASTHI, ACCOUNTANT MEMBER I.T.A. No. 2572/KOL/2024 (Assessment Year 2013-14) Pramod Lakra, Deputy Commissioner of Income Tax, Circle 11(1), Kolkata Aayakar Bhawan, 6th Floor, P-7, Chowringhee Square, Kolkata – 700069 ……..…...…………….... Appellant vs. M/s Amicus Healthcare Services & Solutions Pvt. Ltd., 41, Ballygunge Terrace, Golpark, Kolkata – 700029 [PAN: AAGCA7409N] ................................. Respondent Appearances by: Assessee represented by : None Department represented by : Pankaj Pandey, Addl. CIT, Sr. DR Date of concluding the hearing : 03.07.2025 Date of pronouncing the order : 09.07.2025 O R D E R PER SANJAY AWASTHI, ACCOUNTANT MEMBER 1. The ITAT Registry has reported that the present appeal is time barred by 139 days. The Revenue has filed a petition for condoning the said delay as under: “Dates Events/Reasons 30.05.2024 Order of CIT(A) was received in the O/o Pr. CIT-2, Kol. 29.07.2024 Due date for filing of 2nd Appeal. 16.10.2024 ASR is submitted to the O/o PCIT-2, Kolkata through proper channel. 22.10.2024 Certificate of filing 2nd appeal was received from the O/o Pr. CIT-2, Kolkata 2 ITA No. 2572/Kol/2024 M/s Amicus Healthcare Services & Solutions Pvt. Ltd. 13.12.2024 Necessary hardcopies of documents/paper/details required for filing 2nd Appeal before Hon’ble ITAT, Kolkata were collected and prepared 17.12.2024 2nd Appeal was filed. It is respectfully submitted that the appeal could not be filed on or before due date due to an immense work load relating to assessment, penalties and writ petition filed by the various assessee in the Calcutta High Court against the order U/s 148A(d) and notice U/s148, as well as collecting and arranging the required documents/files for the 2nd appeal. Therefore, it is requested to kindly condone the delay of 138 days in filing appeal before the Hon'ble ITAT, Kolkata for the sake of substantial justice. Verification I, the undersigned do hereby verify on solemn affirmation in Kolkata that the contents of this affidavit are true to the best of my knowledge and material has been concealed.” 1.1 Considering the reasons given in the said petition, the delay is hereby condoned. 2. This appeal arises from the order u/s 250 of the Income Tax Act, 1961 (hereafter “the Act”), passed by the Ld. Commissioner of Income Tax, Asansol (hereafter “the Ld. CIT(A)”, vide order dated 30.05.2024. 2.1 In this case, the Ld.AO added Rs. 60,00,000/- u/s 68 of the Act on account of share application money the source of which was not allegedly proved to the satisfaction of the Ld. AO. 2.2 The assessee carried this matter in appeal where apart from challenging the addition on merit, the assumption of jurisdiction was also challenged. It was averred before the Ld. CIT(A) that a notice u/s 143(2) of the Act was not issued by the Ld. AO after the proceedings were initiated through issuance of notice u/s 148 of the Act. The Ld. CIT(A) found merit in this submission and set aside the Ld. AO’s order. 2.3 Aggrieved with this action of Ld. CIT(A), the Revenue has filed the present with the following grounds: “1. The CIT(A) has erred in invalidating the reassessment order dated 01.11.2018 without adjudicating the issue of the case ignoring the fact that the assessee failed to file ITR in response to notice u/s 148 in time. 3 ITA No. 2572/Kol/2024 M/s Amicus Healthcare Services & Solutions Pvt. Ltd. 2. The CIT(A) has erred in ignoring the fact that the assessee failed to explain its case with cogent evidence even after availing itself of sufficient opportunities during the course of the reassessment proceedings. 3 The CIT(A) has erred in not appreciating the fact that the non-giving of an opportunity of being heard to the assessee by issuing notice u/s 143(2) would not prejudice the interest of the assessee by any means as there were ample opportunities afforded to the assessee during the course of reassessment proceedings and the assessee actively participated in the reassessment proceeding. Whether on the facts and circumstances of the case and in law, the Ld. CIT(A) has erred in facts and in law in not appreciating the judicial principles laid down in the matter of Pr. CIT Vs. Swati Bajaj reported in [2022] 139 taxmann.com 352 (Cal)/446 ITR 56 (Cal) wherein the Hon'ble High Court at Calcutta laid down guidelines on the manner in which the allegation against the assessee has to be considered. 5. Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) has failed to appreciate the principle which has been laid down by the Hon'ble Supreme Court in the case of Pr.CIT(Central)-1, Kolkata vs NRA Iron & Steel Pvt. Ltd. (412 ITR 161) [2020] 117 taxmann.com 752 (SC). 6. Whether on the facts and circumstances of the case, the Hon'ble High Court has committed substantial error in law in not following the judicial Principles laid down in the matter of Pr. CIT2, Kolkata(C)-2, Kolkata Vs M/s BST Infratech Ltd.in [2024] 161 taxmann.com 688 (Calcutta) dated 23.04.2024, which is an earlier decision of Hon'ble High Court having a Precedence value? 7. Whether on the facts and circumstances of the case, and in law, the Ld. CIT(A) has failed to appreciate the judicial principles laid down in the matter of Sumati Dayal v. CIT [1995] 214 ITR 801 (SC) and also in the matter of CIT Vs. Durga Prasad More 1973 CTR (SC) 500: [1971] 82 ITR 540 (SC). 8. The appellant prays that the tax effect in the instant case is 18,54,000/- which is below the monetary limit prescribed by the CBDT Circular No. 9/2024 dated 17.09.2024. However, it is humbly prayed that the case falls within the exception clause 3.1(h) of Circular No. 05/2024 dated 15.03.2024 as a modus operandi of evasion is involved in the case, meaning thereby that large amounts of money have been brought to the books/system of the assessee company in highly suspicious circumstances. 9. That the appellant craves leave to add any new ground or alter any of the grounds and to put forward necessary arguments in support of the grounds of appeal either before the appellate proceedings or in the course of the appellate proceedings.” 3. On the last date of hearing, none appeared on behalf of the assessee but it was decided to proceed ahead with the adjudication with the help of Ld. DR. The Ld. DR pointed out that the assessee did not properly comply with the terms of notices issued by the Ld. AO. On a query from the Bench, regarding the issue of notice u/s 143(2) of the Act which incidentally is also reflected in Ground No. 3, the Ld. DR relied on the order of Ld. AO. 4 ITA No. 2572/Kol/2024 M/s Amicus Healthcare Services & Solutions Pvt. Ltd. 4. We have carefully considered the averments of the Ld. DR and have also gone through the documents before us. In the context of the ground pertaining to the issue of notice u/s 143(2) of the Act, it would be pertinent to reproduce the relevant portion from the impugned order. “6.6: On the proper evaluation and appreciation of the facts of the case, non- submission of remand report by the AO and reply of the appellant, it is seen that there is force and merit in the legal submission of the appellant. There is no proof that notice u/s 143(2) has been issued and served during reassessment proceedings, therefore the case laws and judicial pronouncement cited in the paragraph 6.4 above by the appellant company is applicable in the present case. Therefore, respectfully following the judicial pronouncement of Hon'ble SC decision in the case of \"CIT VS Laxman Das Khandelwal, Civil appeal No. 6261-6262 2019 dated 13.08.2019\" and Jurisdictional ITAT decisions cited above, I am inclined to accept the contention of appellant that in the complete absence of issuance and service of notice u/s 143(2) during reassessment proceedings u/s 147/143(3), the assessment order is without jurisdiction and therefore, is non est in the eyes of law. Therefore, these grounds of appeal are allowed. 4.1 It is seen that the Ld. CIT(A) has applied the law correctly to the facts of the case and granted relief. We may also add that it is now well settled that once the notice u/s 148 of the Act has been duly complied with, as has been in this case considering the recording of fact on the second para on page 2 of the Ld. AO’s order, then the Ld.AO is duty bound to issue a notice u/s 143(2) of the Act. In the case of Asstt. CIT Vs. Hotel Blue Moon [2010] 188 Taxman 113/321 ITR 362 (SC) the Hon’ble Apex Court held that where the A.O. for any reason, repudiates return filed by assessee in response to notice u/s 158BC(a), he must necessarily issue a notice under section 143(2) of the Act within the time prescribed in proviso to section 143(2) of the Act. In the case of Pr. CIT Vs. Shri Jai Shiv Shankar Traders (P.) Ltd [2015] 64 taxmann.com 220/383 ITR 448 (Delhi), the Assessee filed the return of income on 16/09/2008 and the Assessing Officer processed the return of income. Subsequently the Assessing Officer picked up the above return for scrutiny assessment and issued a notice to the assessee under section 148 of the Act. 5 ITA No. 2572/Kol/2024 M/s Amicus Healthcare Services & Solutions Pvt. Ltd. Thereupon the assessee appeared before the AO and informed him that the return originally filed should be treated as the return filed pursuant to the notice under section 148 of the Act. Thereafter, the Ld. AO passed the reassessment order on the assessee and made a certain addition to its income. On appeal, the Commissioner (Appeals) held that no specific notice was required to be issued under section 143(2). Non issue of notice under section 143(2) did not render the reassessment invalid. On second appeal, the Tribunal held that for completing the assessment under section 148, compliance with the procedure under section 143(2) was mandatory. On appeal to the High Court, the revenue relying on the provisions of section 292BB urged that the assessee having not raised any objection about non service of the notice under section 143(2) either at any time before the Assessing Officer or prior to or during the reassessment proceedings, the assessee was precluded from raising such an objection in the subsequent stages of the proceedings. The Hon'ble High Court held that in the instant case, no notice under section 143(2) was issued to the assessee after the date on which the assessee informed the Assessing Officer that the return originally filed should be treated as the return filed pursuant to the notice under section 148 of the Act. The legal position regarding section 292BB has already been made explicit by the Allahabad High Court in the cases of CIT v. Rajeev Sharma [2010] 192 Taxman 197/[2011] 336 ITR 678 and CIT v. Salarpur Cold Storage (P.) Ltd. [2014] 50 taxmann.com 105/[2015] 228 Taxman 48 (All.) (Mag.). That provision would apply insofar as failure of service of notice was concerned and not with regard to failure to issue notice. In other words, the failure of the Assessing Officer in reassessment proceedings to issue notice under section 143(2) of the Act prior to finalising the reassessment order cannot be condoned by referring to section 292BB of the Act. The resultant position is that the failure by the Assessing Officer to issue a notice to the assessee under section 143(2) is fatal to the order of reassessment. 6 ITA No. 2572/Kol/2024 M/s Amicus Healthcare Services & Solutions Pvt. Ltd. 4.2 Considering the discussion above, it is held that there is no infirmity in the order of Ld. CIT(A) and accordingly, the appeal of Revenue is dismissed. 5. In result, appeal of the revenue is dismissed. Order pronounced on 09.07.2025 Sd/- Sd/- (George Mathan) (Sanjay Awasthi) Judicial Member Accountant Member Dated: 09.07.2025 AK, Sr. P.S. Copy of the order forwarded to: 1. Pramod Lakra, Deputy Commissioner of Income Tax, Circle 11(1), Kolkata 2. M/s Amicus Healthcare Services & Solutions Pvt. Ltd 3. CIT(A) 4. CIT 5. CIT(DR) //True copy// By order Assistant Registrar, Kolkata Benches "