Shivam Dhatu Udyog Ltd. v. Dy. CIT

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The Tax Publishers2021 TaxPub(DT) 1543 (Kol-Trib)

INCOME TAX ACT, 1961

Section 143(2) Section 143(3)

AO-Dy. CIT, Circle-3(1), Kolkata who passed assessment order under section 143(3) having jurisdiction, had not issued fresh notice under section 143(2) before framing assessment under section 143(3) and, therefore, assessment so framed was null in the eyes of law.

Assessment - Validity - Non-issuance of notice under section 143(2) by jurisdictional AO -

Notice under section 143(2) was issued on 8-8-2013 by Deputy Commissioner, Circle-2, Gorakhpur (State of U. P.). Assessee objected to jurisdiction of Dy. CIT, Circle-2, Gorakhpur stating that assessee company had its registered office at Kolkata, i.e., in the State of West Bengal. Realizing the mistake, Deputy Commissioner, Circle-2, Gorakhpur transferred the case to AO, Kolkata who framed assessment under section 143(3), however without issuing notice under section 143(2). Held: AO-Dy. CIT, Circle-3(1), Kolkata who passed assessment order under section 143(3) having jurisdiction had not issued fresh notice under section 143(2) before framing assessment under section 143(3) and, therefore, assessment so framed was null in the eyes of law.

Followed:CIT v. Hotel Blue Moon (2010) 321 ITR 362 (SC) : 2010 TaxPub(DT) 1434 (SC)

REFERRED :

FAVOUR : In assessee's favour.

A.Y. : 2012-13

IN THE ITAT, KOLKATA BENCH

J. SUDHAKAR REDDY, A.M. & A.T. VARKEY, J.M.

Shivam Dhatu Udyog Ltd. v. Dy. CIT

I.T.A. No. 2456/Kol/2019

10 March, 2021

In favour of assessee.

Appellant by: Miraj D. Shah, Authorised Representative

Respondent by: Sandeep Choube, Commissioner, Departmental Representative

ORDER

A.T. Varkey, J.M.

This is an appeal preferred by the assessee against the order of learned Commissioner (Appeals)-5, Kolkata, dated 14-10-2019 for assessment year 2012-13.

2. At the outset, learned Authorised Representative for the assessee Shri Miraj D. Shah drew our attention to the additional ground raised by the assessee which is as under :--

'1. For that the assessing officer issuing the notice under section 143(2) of the Income Tax Act, 1961 did not have jurisdiction over the case, of the assessee hence, the notice is bad in law and the assessment order passed on the basis of such notice is bad in law and should be quashed.

2. For that the assessment order was passed without service of any valid notice under section 143(2) of the Income Tax Act, 1961 and therefore the assessment order passed is bad in law and should be quashed.

3. That in the facts and circumstances of the case, the assessment order under section 143(3) of the Income Tax Act 1961 was without jurisdiction and bad in law and thus the entire assessment order be quashed and or cancelled.'

3. On a perusal of this additional ground it is discerned that the assessee is raising a legal issue in respect of jurisdiction of the assessing officer (Deputy Commissioner, Circle-3(1), Kolkata) (hereinafter called the 'AO') to have passed the scrutiny assessment order under section 143(3) of the Income Tax Act, 1961 (hereinafter referred to as the 'Act') on the ground that the assessing officer did not issue the mandatory statutory notice under section 143(2) of the Act before framing the assessment order under section 143(3) of the Act on 17-3-2015.