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  • Circle-49(1), Kolkata u/s.143(3) of the Income-tax Act, 1961 (hereinafter referred
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Disposition

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  • Circle-49(1), Kolkata u/s.143(3) of the Income-tax Act, 1961 (hereinafter referred
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Smart Summary

Structured Summary of the Tribunal Order — ITA No. 422/Kol/2023 (Assessment Year 2017-18)

Bench: "SMC" Bench, ITAT Kolkata
Members: Shri Sanjay Garg (Judicial Member) & Shri Girish Agrawal (Accountant Member)
Date of Pronouncement: 21.06.2023

Factual and Procedural Background

The assessee, Shivam Finance Maitrabagan (PAN: ABBFS2353L), filed its return of income for AY 2017-18 on 27.10.2017 reporting total income of Rs. 43,53,620/-. The case was selected for scrutiny through CASS. During assessment proceedings, the Assessing Officer (ITO, Ward-49(1), Kolkata) issued a notice under section 143(2) of the Income-tax Act, 1961, dated 17.08.2018 and subsequently completed the assessment under section 143(3) by making an addition of Rs. 6.20 lakhs under section 69A in relation to cash deposits during the demonetisation period.

The assessee appealed to the Commissioner of Income Tax (Appeals), National Faceless Appeal Centre (NFAC), Delhi. The appeal before the CIT(A) was dismissed for non-appearance and the CIT(A) confirmed the assessment. The assessee then filed the present appeal before the Income Tax Appellate Tribunal (SMC Bench, Kolkata), challenging, inter alia, the jurisdiction of the ITO, Ward-49(1) to issue the notice under section 143(2) and the additions and tax treatment made by the AO and confirmed by the CIT(A).

Legal Issues Presented

  1. Whether the notice issued under section 143(2) by ITO, Ward-49(1), Kolkata was valid when the assessee's declared total income exceeded the monetary threshold set by CBDT Instruction No. 1/2011 (i.e., whether jurisdiction lay with the DCIT/ACIT for a corporate assessee with declared income above Rs. 30 lakhs in metro cities)?
  2. Whether, in consequence of any invalidity of the notice under section 143(2), the assessment proceedings completed under section 143(3) are liable to be quashed?
  3. Ancillary to the above, the appeal also raised substantive issues (as grounds) concerning additions under section 69A and tax charged under section 115BBE and whether section 115BBE could be applied retrospectively; however, these were rendered academic if the primary jurisdictional issue succeeded.

Arguments of the Parties

Appellant's Arguments

  • The assessee contended that the notice under section 143(2) issued by ITO, Ward-49(1) was without jurisdiction and therefore invalid because the assessee's declared income for the relevant year exceeded Rs. 30 lakhs and, as per CBDT Instruction No. 1/2011 (and revised monetary limits), jurisdiction for such corporate cases in metro cities lies with the DCIT/ACIT.
  • The assessee relied on the judgment of the Hon'ble Calcutta High Court in PCIT Vs. Shree Shoppers Ltd. (ITAT/39/2023 in IA No. GA/1/2023, dated 15.03.2023) as directly on point, and also placed on record the Coordinate Bench ITAT order in Shree Shoppers Ltd. Vs. DCIT (ITA No. 865/Kol/2018 dated 08.09.2022), which the High Court affirmed.
  • The assessee raised additional grounds challenging the merits of the addition under section 69A and the application of section 115BBE, including arguments about retrospective application; however, counsel advanced the jurisdictional point at the outset as decisive.

Respondent's Arguments

  • The Department (through Ld. Senior DR) placed reliance on the order of the Assessing Officer. No specific alternative material was placed on record contesting the jurisdictional facts emphasized by the assessee.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
PCIT Vs. Shree Shoppers Ltd. (Hon'ble Calcutta High Court) — judgment dated 15.03.2023 The principle that a valid notice under section 143(2) of the Income-tax Act is a statutory prerequisite to proceedings under section 143(3); non-issuance or issuance by an officer without jurisdiction is incurable and goes to the root of the matter. The Tribunal held the High Court's judgment to be squarely applicable and followed its ratio; concluding that the ITO, Ward-49(1) had no jurisdiction to issue the notice and quashing the assessment proceedings completed under section 143(3).
Shree Shoppers Ltd. Vs. DCIT (ITAT, Kolkata, ITA No. 865/Kol/2018 dated 08.09.2022) Factual and legal findings regarding invalidity of notice under section 143(2) where jurisdiction rested with DCs/ACs as per CBDT instruction and monetary limits; these findings were affirmed by the Hon'ble Calcutta High Court. The Tribunal in the present appeal treated the ITAT Coordinate Bench findings (and their affirmation by the High Court) as supporting the conclusion that notice issued by an ITO lacking jurisdiction was invalid; the present Tribunal followed that approach to quash the assessment.

Court's Reasoning and Analysis

The Tribunal heard the rival contentions and examined the record. The key analytical steps recorded in the order are:

  1. The Tribunal recognized the settled legal position that for framing an assessment under section 143(3) a valid notice under section 143(2) is mandatory; in the absence of such a valid notice the subsequent proceedings are invalid.
  2. The Tribunal considered the CBDT Instruction No. 1/2011 and the revised monetary limits for issuance of notices by ITO/DCs/ACs. Under those instructions, in metro cities, jurisdiction over corporate assessee cases with declared income above Rs. 30 lakhs lies with the DCs/ACs.
  3. On the facts of the present case the assessee had declared total income of Rs. 43,53,620/-, which exceeded the Rs. 30 lakh threshold. On the date of selection for scrutiny and issuance of the notice, the ITO, Ward-49(1), Kolkata issued the section 143(2) notice even though jurisdiction on the basis of returned income was vested in DCs/ACs.
  4. The Tribunal noted that revenue did not place any contrary material on record to dispute this factual position.
  5. Relying on the High Court's decision in PCIT Vs. Shree Shoppers Ltd. (which affirmed the ITAT Coordinate Bench decision in Shree Shoppers Ltd. Vs. DCIT), the Tribunal found the precedent squarely applicable and binding for the identical jurisdictional issue, and therefore concluded that the notice issued by ITO, Ward-49(1) was without valid jurisdiction.
  6. Because a valid notice under section 143(2) had not been issued, the Tribunal held that the assessment proceedings completed under section 143(3) were liable to be quashed. Consequently, the Tribunal did not adjudicate the other grounds on merits, treating them as academic in light of the quashing of the assessment.

Holding and Implications

Holding: The Tribunal's operative decision was to allow the appeal of the assessee. The core ruling is emphasized as follows:

DISPOSED IN FAVOUR OF THE ASSESSEE — the Tribunal quashed the assessment proceedings completed under section 143(3) of the Income-tax Act for Assessment Year 2017-18 on the ground that the notice under section 143(2) was issued without valid jurisdiction by ITO, Ward-49(1), Kolkata.

Implications:

  • Direct effect on the parties: Ground no. 4 raised by the assessee (challenging jurisdiction of the notice under section 143(2)) is allowed and the assessment framed under section 143(3) is quashed; the assessee's appeal is allowed.
  • Because the assessment proceedings were quashed on jurisdictional grounds, the Tribunal did not decide the merits of the additions under section 69A, the charge under section 115BBE, or other substantive grounds; those grounds were treated as academic and were not adjudicated.
  • The order follows existing High Court and Coordinate Bench authority and does not purport to lay down a new legal precedent beyond applying those authorities to the facts of this case.

Order pronounced in open court on 21st June, 2023. Members: (Sanjay Garg) Judicial Member; (Girish Agrawal) Accountant Member.

Show full summary ...

    M/s. Shivam Finance. , Basirhat v. ACIT, CIR-49(1),KOL, Kolkata

    IN THE INCOME TAX APPELLATE TRIBUNAL "SMC" BENCH KOLKATA

    BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER

    AND SHRI GIRISH AGRAWAL, ACCOUNTANT MEMBER

    ITA No.422/Kol/2023

    Assessment Year: 2017-18

    Shivam Finance Maitrabagan, P.O. Basirhat College, Basirhat, North 24 Parganas, West Bengal- 743412. (PAN: ABBFS 2353 L) Vs. Assistant Commissioner of Income Tax, Circle-49(1), Kolkata.
    (Appellant) (Respondent)

    Present for:

    Appellant by : Shri Sunil Surana, AR

    Respondent by : Shri Vijay Kumar, Addl. CIT

    Date of Hearing : 14.06.2023

    Date of Pronouncement : 21.06.2023

    O R D E R

    PER GIRISH AGRAWAL, ACCOUNTANT MEMBER:

    This appeal filed by the assessee is against the order of Ld. CIT(A), National Faceless Appeal Centre (NFAC), Delhi vide Appeal No. ITBA/NFAC/S/250/2022-23/1051453951(1) dated 28.03.2023 passed against the assessment order by Asstt. Commissioner of Income Tax, Circle-49(1), Kolkata u/s.143(3) of the Income-tax Act, 1961 (hereinafter referred to as the "Act"), dated 11.12.2019 for AY 2017-18.

    2, Grounds of appeal raised by the assessee are reproduced as under:

    "1. For that the Ld. CIT(A) erred in passing the order ex-parte without allowing the appellant any proper and reasonable opportunity of being heard since the assessee did not even receive any mail or SMS alert from the department.

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    2. For that the Ld. C.I.T(A) erred in passing the order when it was incumbent on him to deal with and decide each of the grounds raised in the appeal on its merits.

    3. For that on the facts and circumstances of the case the order of the CIT(A) be modified and the assessee be given relief prayed for.

    4. For that the Ld. ClT(A) erred in confirming the assessment initiated and completed by AO since the notice u/ s. 143(2) issued by ITO Ward 49(1) was without jurisdiction and invalid since the declared income of the assessee for the relevant year was more than Rs 30 Lakhs and only the DCIT / ACIT had the jurisdiction over the case of the assessee.

    5. For that on the facts and circumstances of the case the Ld. CIT(A) erred in conf irming the addition made by AO of Rs. 6,20,000/ - u/s 69A to the to tal income which was not justif ied.

    6. For that on the facts and circumstances of the case the Ld. CIT(A) erred in conf irming the addition made by AO of Rs.6,20,000/ - u/ s 69A to the total income and charged tax u/s 115BBE which was unjustif ied and not in accordance of law since the amendment to section 115BBE cannot be applied retrospectively as because the amount was deposited before its amendment and further seclion115BBE being charging section cannot be given retrospective operation.

    7. For that on the facts and in the circumstances of the case the Ld. CIT(A) erred in conf irming the action of AO in charging the tax at the amended rates u/s 115BBE when the Income was duly declared il l the income tax return, section 69A was not applicable and as such the tax should have been computed at normal rates as per the slabs provided under the Finance Act for the relevant year.

    8. For that even otherwise the income of the assessee can be taxed only under the various heads prescribed under the law and the income even if taxable could be charged u/s. 56 as income from other sources and normal tax was to be calculated under the provisions of law."

    3. Brief facts of the case are that assessee filed its return of income on 27.10.2017 reporting total income of Rs.43,53,620/-. Case of the assessee was selected for scrutiny through CASS. In the present appeal, assessee has challenged the issue of notice u/s. 143(2) of the Act vide ground no. 4 by stating that notice issued by Income Tax Officer, Ward-49(1) was without jurisdiction and invalid since the declared income of the assessee for the relevant year is more than Rs. 30 lakhs and only the DCIT/ACIT had the jurisdiction over the case of the assessee who could have issued the notice u/s. 143(2) of the Act.

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    In the course of assessment, Ld. AO called for details and explanations in respect of deposit of cash in the bank account during the de- monetization period and completed the assessment by making an addition of Rs.6.20 lakhs u/s. 69A by holding it as unexplained money. In the first appeal before the Ld. CIT(A), it was dismissed for non-appearance by the assessee. Aggrieved, assessee is in appeal before the Tribunal.

    4. At the outset, Ld. Counsel for the assessee emphasized on the legal issue relating to jurisdiction assumed by Ld. ITO, ward-49(1), Kolkata for issuing the notice u/s. 143(2) dated 17.08.2018 for initiating the assessment proceedings. Copy of the said notice is placed on record in the paper book at pages 1 and 2. Ld. Counsel submitted that the issue is squarely covered by the recent judgment of Hon'ble jurisdictional High Court of Calcutta in the case of PCIT Vs. Shree Shoppers Ltd. in ITAT/39/2023 in IA No.GA/1/2023, dated 15.03.2023, wherein substantial questions of law before the Hon'ble Court were as under:

    "(i) whether on the facts and circumstances of the case the Tribunal was justified in law to quash the Assessing Order passed under section 143(3) of the said Act on the ground that the valid Notice under Section 143(2) was not issued in accordance with law despite the fact that said Notice was already issued by the jurisdictional Assessing Officer before the process of Restructuring Departmental Cadre ?

    ii) Whether on the facts and circumstances of the case the Tribunal was justified in law in not appreciating the fact that the Notice under Section 143(2) of the said Act is issued only once at the time of initiating of the scrutiny assessment, thereafter mere change of jurisdictional Assessing Officer within the same Range and/or Pr.CIT cannot affect the assessment proceedings?"

    5. On the above substantial questions of law, the Hon'ble Court held that Tribunal rightly allowed the assessee's appeal and quashed the scrutiny proceedings as effect of non-issuance of notice is incur- able since it goes to the root of the matter. The Hon'ble Court noted that "we find no ground to differ with the findings recorded by the Ld.

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    Tribunal. In the result, the appeal filed by the revenue is dismissed and the substantial question of law are answered against the revenue."

    5.1. While giving this judgment, the Hon'ble Court noted the factual findings of the Tribunal which is reproduced as under:

    "The short issue which falls for consideration in the instant case is whether there is valid notice issued under Section 143 (2) of the Act for commencing the Scrutiny assessment. The Tribunal has noted the facts and rendered a finding that on the date when the case was selected for scrutiny, the authority who issued the notice namely, the Income Tax Officer, Ward No.9 (4), Kolkala did not have jurisdiction and the jurisdiction was with the Deputy Commis- sioner of Income Tax. The following factual finding has been recorded by the Tribunal :

    "Therefore, the legal ground stands to be admitted and the same re1ates to invalid notice issued u/ 143(2) of the Act. It is a settled posi- tion of law that for carrying out the assessment proceedings u/s. 143(3) of the Act, the statutory requirement of serving of valid notice u/s. 143(2) of the Act is must and in absence thereof the subsequent pro- ceedings become invalid. In the case of assessee, the facts are that the assessee has declared income of Rs.48,47,180/- in the e-return filed on 26.09.2012. For selecting the case for scrutiny notice u/s. 143(2) of the Act as issued by ITA, Ward-9(4), Kolkata dated 23.09.2013. The Cen- tral Board of Direct Taxes (CBDT vide Instruction No.1 /2011 supra) re- vised the monetary limit for issuing notice by ITO/DCs/ACs. Through this instruction it stated that in case of metro cities in case of corporate declare income above Rs.30 1akh the jurisdiction of such corporate as- sessee will lie with the DCs/ACs. It is not in dispute chat as on the date of selecting the case for scrutiny, the very basis for having jurisdic- tion over the assessee is the returned income which was more than Rs.30 1akhs and the same was lying with the DCs/Acs but the notice u/s. 143(2) of the Act has been issued by ITO, Ward-9(4), Ko1kata. It is true that subsequently the assessment has been framed by DCIT, Cir- cle-9(2), Kolkata but the point in dispute is that on date of issuing a no- tice u/s. 143(2) of the At, whether the ITO, ward-9(4), Kolkata was hav- ing a valid jurisdiction to issue such notice u/s. 143(2) of the Act."

    6. Ld. Counsel also placed on record the order of the Coordinate Bench of ITAT, Kolkata in the case of Shree Shoppers Ltd. Vs. DCIT in ITA No. 865/Kol/2018 dated 08.09.2022 findings of which have been affirmed by the Hon'ble jurisdictional High Court of Calcutta as stated above.

    7. Per contra, Ld. Sr. DR placed reliance on the order of Ld. AO.

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    8. We have heard the rival contentions and perused the material available on record and find that the issue raised by the Ld. Counsel on the jurisdictional aspect in respect of notice issued u/s. 143(2) is no longer res integra. It is a settled position of law that for carrying out an assessment proceedings u/s. 143(3) of the Act, statutory requirement of serving a valid notice u/s. 143(2) of the Act is a must and in absence of which the subsequent proceedings become invalid. In the present case before us, it is a fact that assessee has reported total income of Rs.43,53,620/- which exceeds the threshold prescribed in the CBDT Instruction no. 1/2011 read with revised monetary limit for issuing notice by ITO/DCs/ACs. Through this instruction, it stated that in case of metro cities, in case of corporate declared income above Rs. 30 lakh, the jurisdiction of such corporate assessee will lie with the DCs/ ACs. It is not in dispute that as on the date of selecting the case for scrutiny, the very basis for having jurisdiction over the assessee is the returned income which was more than Rs. 30 lakhs and the same was lying with the DCs/ACs but the notice u/s. 143(2) of the Act has been issued by ITO, Ward 49(1), Kolkata. It is true that subsequently the assessment has been framed by ACIT, Circ1e-49, Kolkata but the point in dispute is that on the date of issuing a notice u/s. 143(2) of the Act, whether the ITO, Ward-49(1), Kolkata was having a valid jurisdiction to issue such notice u/s. 143(2) of the Act. We find that Hon'ble jurisdictional High Court in the recent judgment in the case of PCIT Vs. Shree Shoppers Ltd. (supra) has decided identical issue in favour of the assessee.

    9. Thus, from the perusal of the findings given by Hon'ble jurisdictional High Court and from the examination of facts of the present case, we find that the aforesaid judgment of

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    the Hon'ble High Court is squarely applicable on the facts of the present case. We thus, unhesitatingly hold that ITO, Ward-49(1), Kolkata had no valid jurisdiction over the assessee on the date of issuing notice u/s. 143(2) of the Act. Revenue has not controverted this fact by placing any other contrary material on record to indicate otherwise. Since a valid notice u/s. 143(2) has not been issued, the assessment proceedings carried thereafter deserves to be quashed. We, therefore, respectfully following the ratio laid down by Hon'ble jurisdictional High Court in the case of PCIT Vs. Shree Shoppers Ltd. (supra), allow ground no. 4 raised by the assessee and quash the assessment proceedings completed u/s. 143(3) of the Act. Since we have quashed the assessment proceedings, the grounds relating to the merits of the case are rendered mere academic in nature and are, therefore, not adjudicated upon. Accordingly, the appeal of the assessee is allowed.

    10. In the result, appeal of the assessee is allowed. Order pronounced in the open court on 21stJune, 2023. Sd/- Sd/-

    (Sanjay Garg) (Girish Agrawal)

    Judicial Member Accountant Member

    Dated: 21st June, 2023

    JD, Sr. P.S.

    Copy to:

    1. The Appellant:

    2. The Respondent:.

    3. CIT(A), NFAC, Delhi

    4. CIT,

    5. DR, ITAT, Kolkata Bench, Kolkata //True Copy// By Order

    Assistant Registrar

    ITAT, Kolkata Benches, Kolkata

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    Comments

    M/s. Shivam Finance. , Basirhat v. ACIT, CIR-49(1),KOL, Kolkata
    (Jun 21, 2023)