RITESHH AGARWAL,KOLKATA V. ITO, NFAC, , DELHI

ITA 826/KOL/2025

AI Insights

The case involves Riteshh Agarwal, the appellant, who contested an assessment order passed by the Income Tax Officer (ITO), NFAC, Delhi, for the assessment year 2018-2019. The primary contention was the absence of a valid notice under section 143(2) of the Income Tax Act, 1961, which the appellant argued rendered the assessment invalid. The ITO had initially processed the return under section 143(1) and later reopened the case under section 147, issuing a notice under section 148. The Tribunal, after reviewing the submissions and the relevant legal provisions, including various High Court decisions and Tribunal precedents, concluded that the failure to issue a notice under section 143(2) was a significant procedural irregularity that invalidated the assessment.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 782341 (ITAT-KOLKATA)
• Duration Of Justice: 6 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-10-2025
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2018-2019
• Appeal Filed On: 21-04-2025
• Other Referred Cases: PCIT-2, Kolkata, Vs. M/s Sudarshan Paper & Board Private Limited, DCIT Vs. M/s Sudarshan Paper & Board Pvt. Ltd., PCIT Vs Raghvendra Mohta, Raghvendra Mohta Vs. ACIT, Circle 36, Kolkata, Commissioner of Income Tax International taxation-1, New Delhi Vs. Oracle Systems Corporation
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Set aside; Opportunity of being heard
• Section: 147; 148; 144

Judgement Text

" IN THE INCOME TAX APPELLATE TRIBUNAL “D” BENCH,KOLKATA SHRI RAJESH KUMAR, ACCOUNTANT MEMBER SHRI PRADIP KUMAR CHOUBEY, JUDICIAL MEMBER I.T.A. No.826/Kol/2025 (Assessment Year 2018-2019) Riteshh Agarwal, C/o M/s SalarpuriaJajodia& Co., 7, C.R. Avenue, 3rd Floor, Kolkata - 700072 [PAN: AFYPA2827G]……..…...……………....Appellant vs. ITO, NFAC, Delhi, Mayur Bhawan, Connaught Lane, Connaught Place, New Delhi – 110001............................ Respondent Appearances by: Assessee represented by : S. Jhajharia, FCA Department represented by : S.B. Chakraborthy, Sr. DR Date of concluding the hearing : 09.09.2025 Date of pronouncing the order :27.10.2025 O R D E R PER RAJESH KUMAR, ACCOUNTANT MEMBER 1. This appeal arises from order dated 28.02.2025, passed u/s 250 of the Income Tax Act, 1961 (hereafter “the Act”) by the Ld. Commissioner of Income Tax (Appeals), National Faceless Appeal Centre (NFAC), Delhi [hereafter “the Ld. CIT(A)]. 2 At the time of hearing, the Ld. Counsel for the assessee pressed Ground No. 4 which is extracted as under. “4. That on the facts and on the circumstances of case, since the AO had never issued a valid notice under section 143(2) of the Act, the assessment so framed by the AO is liable to be quashed/cancelled/set aside following the various decisions of the Courts of the Country.” 3. Brief facts of the case are that the assessee filed its return of income on 02.07.2018 declaring total income of Rs. 15,47,510/- which was Printed from counselvise.com 2 ITA No.826/Kol/2025 Riteshh Agarwal processed u/s 143(1) of the Act. Thereafter, the case of the assessee was reopened u/s 147 of the Act by issuing notice u/s 148 of the Act on 29.03.2022. The AO noted that the assessee failed to file his ITR in response to notice u/s 148 of the Act and stated in the assessment order that assessment was being passed u/s 144 of the Act by making an addition of Rs. 1,05,00,000/- in respect of unexplained money u/s 69A of the Act. 4. In the appellate proceedings, the Ld. CIT(A) restored the issue to the file of Ld. AO with a direction to decide the same after providing the assessee a reasonable opportunity of being heard qua the issue as raised in ground No. 4, that no notice u/s 143(2) of the Act was issued. 5. During the course of hearing on 05.08.2025, the bench directed the assessee to file an affidavit supporting the averment that the AO has not issued any notice u/s 143(2) of the Act which was filed by the assessee during the course of hearing on 09.09.2025 stating therein on oath that no notice was ever issued to the assessee at all by the AO u/s 143(2). The fact was confronted to the DR also who admitted that though the assessee requested the AO by way of letter dated 29.04.2022 that the return filed originally may kindly be treated as return in response to notice u/s 148 of the Act dated 29.03.2022. The assessee again requested the AO about the none issuance of notice by the AO vide letter dated 14.03.2023, a copy of which is available at page No. 23 to 38 in which para 8, the assessee again brought to the notice of the AO qua the assessee return of income having been filed u/s 139(1) of the Act which may be taken in compliance to the notice u/s 148 of the Act. Again the AO failed to take cognizance of the same. We note that in the assessment order in para 1 the AO has categorically mentioned that the assessee has failed to file in ITR in response to notice u/s 148 of the Act and further stated that therefore the order is framed u/s 147r.w.s. 144 of the Act. The Ld. DR submitted that only because of this misunderstanding the AO had not issued any notice u/s 143(2) of the Act. Printed from counselvise.com 3 ITA No.826/Kol/2025 Riteshh Agarwal 6. In our opinion, the assessment framed dehors notice u/s 143(2) is invalid and nullity in the eyes of law and therefore cannot be sustained. The decision of the various High Courts and Coordinate Bench of the Tribunal which are squarely applicable to the assessee case are as under:- 1. PCIT-2, Kolkata, Vs. M/s Sudarshan Paper & Board Private Limited, ITAT/182/2022 IA No. GA/1/2022, GA/2/2022, dated 05.12.2022 2. DCIT Vs. M/s Sudarshan Paper & Board Pvt. Ltd., ITA No. 130/Kol/2018 and CO No. 32/Kol/2018, dated 23.10.2019 3. PCIT Vs Raghvendra Mohta, ITAT/51/2015, IA No. GA/1/2025, GA/2/2025, dated 05.05.2025 4. Raghvendra Mohta Vs. ACIT, Circle 36, Kolkata, ITA No. 2416/Kol/2017, dated 08.04.2024 and 5. Commissioner of Income Tax International taxation-1, New Delhi Vs. Oracle Systems Corporation (Delhi High Court) dated 28.10.2024 Therefore, we respectfully following the above decisions, quash the assessment order by the AO as invalid and nullity. 7. In result, appeal of the assessee is allowed. Order pronounced on 27.10.2025 Sd/- Sd/- (Pradip Kumar Choubey) (Rajesh Kumar) Judicial Member Accountant Member Dated: 27.10.2025 AK,Sr. P.S. Printed from counselvise.com 4 ITA No.826/Kol/2025 Riteshh Agarwal Copy of the order forwarded to: 1. Appellant 2. Respondent 3. Pr. CIT 4. CIT(A) 5. CIT(DR) //True copy// By order Assistant Registrar, Kolkata Benches Printed from counselvise.com "