SINGUR THANA LSPA CO-OPERATIVE MARKETING SOCIETY LTD,KOLKATA V. ITO, HOOGHLY

ITA 969/KOL/2023

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The case involves the Singur Thana LSPA Cooperative Marketing Society Limited, which appealed against the orders passed by the CIT(A), National Faceless Appeal Centre, Delhi, for the assessment years 2014-2015, 2017-2018, and 2018-2019. The primary contention was the validity of the notice issued under section 143(2) of the Income Tax Act, which was claimed to be in violation of a CBDT instruction. The Tribunal admitted the additional ground raised by the assessee regarding the legal issue of the notice's validity, citing the Supreme Court's decision in National Thermal Power Co. Ltd. Vs. CIT as a precedent.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 126274 (ITAT-KOLKATA)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-04-2025
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2017-2018
• Other Referred Cases: National Thermal Power Co. Ltd. Vs. CIT, Lavanya Estates Pvt. Ltd. vs. ITO, Shri Rudraprasad Mondal vs. DCIT, Dev Milk Foods Pvt. Ltd. vs. Addl. CIT, Sukhdham Infrastructure LLP vs. ITO
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MADHUMITA SAS
• Assessee Lawyers: SOMNATH GHOSH
• Keywords: Validity of assessment; National Faceless Appeal; HRA; Department
• Section: 143(2)

Judgement Text

" आयकर अपीलȣय अͬधकरण,“एस.एम.सी” Ûयायपीठ,कोलकाता IN THE INCOME TAX APPELLATE TRIBUNAL “SMC” BENCH, KOLKATA BEFORE SHRI RAJESH KUMAR, ACCOUNTANT MEMBER आयकर अपील सं/ITA No.968-970/KOL/2023 (Ǔनधा[रण वष[ / A.Yrs. : 2014-2015, 2017-2018 & 2018-2019) Singur Thana LSPA Cooperative Marketing Society Limited, C/o S.N.Ghosh&Associates,Advs 2, Garstin Place, 2nd Floor, Suite No.203, Off Hare Street, Kolkata-700001 Vs ITO, Ward-23(2), Hooghly PAN No. :AABAS0029 B (अपीलाथȸ /Appellant) .. (Ĥ×यथȸ / Respondent) Ǔनधा[ǐरतीकȧओरसे /Assessee by : Shri Somnath Ghosh & Sarnath Ghosh, Advocates राजèवकȧओरसे /Revenue by : Ms. Madhumita Sas, Addl.CIT सुनवाई कȧ तारȣख / Date of Hearing : 17/04/2025 घोषणा कȧ तारȣख/Date of Pronouncement : 21/04/2025 आदेश / O R D E R These are the appeals filed by the assessee against the separate orders all dated 15.03.2023, passed by the ld. CIT(A), National Faceless Appeal Centre, (NFAC), Delhi for the Assessment Year 2014-2015, 2017- 2018 & 2018-2019. 2. As per the office record, it is found that all the three appeals of the assessee are filed belatedly by 120 days each. Looking to the facts and circumstances of the case, we condone the delay of 120 days each in fling all the three appeals and the appeals are admitted for adjudication. 3. As similar grounds have been taken by the assessee in all the three appeals, therefore, for the sake of convenience, the grounds raised in ITA ITA No.968-970/KOL/2023 2 No.968/KOL/2023 and facts therein are taken into consideration for deciding all the three appeals. 4. At the time of hearing, ld. counsel of the assessee raised an additional ground challenging the validity of assessment framed by submitting that the assessment framed is invalid and not sustainable as the notice issued u/s.143(2) of the Act was in violation to the CBDT Instruction f. No. 225/157/2017/ITA-II dated 23.06.2017 and therefore the notice issued u/s. 143(2) was not valid as per Provision of Act. 5. Ld. Counsel of the assessee submitted that the above additional ground is legal issue which goes to the root of the issue and, therefore, the assessee is free to raise the issue in any appellate proceedings. Ld. AR relied on the decision of the Hon’ble Supreme Court in the case of National Thermal Power Co. Ltd. Vs. CIT, reported in [1998] 229 ITR 383(SC) in defense of his arguments. Ld. Sr. DR, on the other hand, opposed the additional ground at this stage on the ground that that was not raised before any of the authorities below. 6. After considering the rival contentions and looking to the facts and circumstances of the case, we find that the issue raised by the assessee is purely a legal issue which goes to the root of the matter. We further find that no further verification of facts is required or any additional facts are required to be brought on records whatsoever. Consequently, we admit the additional ground filed by the assessee before us and we proceed to decide the appeal of the assessee on the above legal ground. ITA No.968-970/KOL/2023 3 7. We note that the additional ground raised by the assessee is with regard to issuance of notice u/s.143(2) of the Act on 24.09.2018, which was in violation of CBDT Instruction f.No.225/157/2017/ITA-II dated 23.06.2017. The ld. AR also placed before us the above instruction issued by the Government of India, Ministry of Finance, Department of Revenue, wherein it has been provided that w.e.f. 23.06.2017, the notice u/s.143(2) of the Act to be issued in any of the three following forms :-  Limited Scrutiny (Computer Aided Scrutiny Selection  Complete Scrutiny (Computer Aided Scrutiny Selection)  Compulsory Manual Scrutiny 8. The ld. AR submitted that the notice is not bearing to any of the above forms prescribed by the CBDT in the above instruction, therefore, notice issued u/s.143(2) of the Act is bad in law for which the assessment is not sustainable. Ld. AR in defense of his arguments, relied on following series of decisions, wherein similar issue has been decided in favour of the assessee :- 1. Lavanya Estates Pvt. Ltd. vs. ITO ITA No.: 342/PAT/2023 PATNA ITAT 2. Shri Rudraprasad Mondal vs. DCIT ITA No.: 702/K/2024 [08.10.2024] Kolkata ITAT 3. Dev Milk Foods Pvt. Ltd. vs. Addl. CIT Spl. R-3,New Delhi Delhi ITAT [ITA No.: 6767/Del/2019] dt. 12.06.2023 4. Sukhdham Infrastructure LLP vs. ITO [ITA No.: 2611/Kol/2019] dt. 23.02.2023 Kolkata ITAT 9. Since the facts and issue involved in the present case are identical to the decisions as relied on by the ld. AR above, we are inclined to hold that notice issued u/s.143(2) of the Act is invalid and, therefore, the assessment framed u/s.143(3) of the Act is also invalid and accordingly ITA No.968-970/KOL/2023 4 quashed. Consequently the additional ground raised by the assessee is allowed. 10. Since the legal issue raised in other two appeals b y the is also identical. Therefore applying our decision in ITA No. 968/ Kol/2023 A.Y. assessee above , the notices issued u/s.143(2) of the Act in the other two A.Y. 2017-18 & 2018-19 are held to be invalid and consequently, the assessment framed by the assessee are void ab initio and the same are hereby quashed. 11. Since we have decided the appeals of the assessee on legal issue, the grounds raised on merit by the assessee are not deliberated upon at this stage.. 8. In the result, all the three appeals of the assessee are allowed. Order pronounced in the open court on 21 /04/2025. Sd/- (RAJESH KUMAR) लेखा सदèय/ACCOUNTANT MEMBER कोलकाताKolkata; Ǒदनांक Dated 21 /04/2025 Prakash Kumar Mishra, Sr.P.S. आदेशकȧĤǓतͧलͪपअĒेͪषत/Copy of the Order forwarded to : आदेशानुसार/ BY ORDER, (Assistant Registrar) Income Tax Appellate Tribunal, Kolkata 1. अपीलाथȸ/ The Appellant- 2. Ĥ×यथȸ/ The Respondent- 3. आयकरआयुƅ(अपील) / The CIT(A), 4. आयकरआयुÈत/ CIT 5. िवभागीयŮितिनिध, आयकरअपीलीयअिधकरण, कोलकाता / DR, ITAT, Kolkata 6. गाड[फाईल / Guard file. स×याͪपतĤǓत //True Copy// "