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TMI Blog2017 (5) TMI 290X X X X Extracts X X X X X X X X Extracts X X X X ..... ary 31, 2011. As the assessment proceedings under section 143(3) of the Act have been held as invalid, therefore in our considered view the other issues raised by the assessee do not require any adjudication. - Decided in favour of assessee - I. T. A. No. 1153/Kol/2015 - - - Dated:- 18-11-2016 - Waseem Ahmed (Accountant Member) And S. S. Viswanethra Ravi (Judicial Member) For the Appellant : Mahadeb Ghosh, Advocate For the Respondent : Md. Ghayas Uddin, Departmental Representative ORDER Waseem Ahmed (Accountant Member) 1. This appeal by the assessee is against the order of the Commissioner of Income-tax (Appeals)-7, Kolkata dated March 31, 2015. Assessment was framed by the Income-tax Officer Ward-1, Haldia under section 143(3) of the Income-tax Act, 1961 (hereinafter referred to as the Act ) vide his order dated March 20, 2013 for the assessment year 2010-11. Shri Mahadeb Ghosh, learned Advocate appeared on behalf of the assessee and Md. Ghayas Uddin, learned Departmental representative appeared on behalf of the Revenue. 2. The assessee has raised the additional grounds of appeal which were admitted after hearing both the parties. The additional g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cross- objections before the Tribunal. We fail to see why the Tribunal should be prevented from considering questions of law arising in assessment proceedings although not raised earlier. In view of the above facts, the additional grounds raised by the assessee are apparently of a legal ground which goes to the root of the matter and no new facts are required to be investigated, we admit the ground and adjudicate the same. 4. At the very outset of the proceedings before us, it was observed that there was a delay of 91 days in filing the appeal before the Tribunal. The impugned order of the learned Commissioner of Income-tax (Appeals) confirming the order of the Assessing Officer was passed vide order dated March 31, 2015. Admittedly, the order was received by the assessee on April 10, 2015 and therefore, the appeal for the assessment year 2010-11 ought to have been filed before this Tribunal on or before June 9, 2015. The appeal was however filed on September 8, 2015 thereby leading to a delay of 91 days. 4.1 Along with the appeal for the assessment year, the assessee has filed separate petitions for condonation of delay of 91 days in filing the appeal before this Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 much after the CBDT Instruction. Certified copy of the notice under section 143(2) is attached in the paper book marked as Annexure-3 which has been challenged. The Assistant Commissioner of Income-tax, Circle-Haldia issued the notice under section 142(1) of the Act on July 3, 2012 which is in the paper book. The said notice for issuing is beyond the jurisdiction of the Assistant Commissioner of Income-tax, Haldia as per the CBDT Instruction marked as Annexure - 4 in the paper book. The learned authorised representative further submitted the section 119, strategically placed in Chapter XIII which deals with Income-tax authorities and enabling power of the Central Board of Direct Taxes, which is recognised as an authority under the Income-tax Act under section 116(a). The Central Board of Direct Taxes under this section is empowered to issue such orders, instructions and directions to other Income-tax authorities as it may deem fit for proper administration of this Act . Such authorities and all other persons employed in execution of this Act are bound to observe and follow such orders, instructions and directions of the Central Board of Direct Taxes. The proviso to sub-section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he has reason to believe that any claim of loss, exemption, deduction, allowance or relief made in the return is inadmissible, serve on the assessee a notice specifying particulars of such claim of loss, exemption, deduction, allowance or relief and require him, on a date to be specified therein to produce, or cause to be produced, any evidence or particulars specified therein or on which the assessee may rely, in support of such claim : Provided that no notice under this clause shall be served on the assessee on or after the 1st day of June, 2003 ; (ii) notwithstanding anything contained in clause (i), if he considers it necessary or expedient to ensure that the assessee has not understated the income or has not computed excessive loss or has not under paid the tax in any manner, serve on the assessee a notice requiring him, on a date to be specified therein, either to attend his office or to produce, or cause to be produced, any evidence on which the assessee may rely in support of the return : Provided that no notice under clause (ii) shall be served on the assessee after the expiry of six months from the end of the financial year in which the return is furnished. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment proceedings. Therefore, the notice under section 143(2) issued by the Assistant Commissioner of Income-tax, Circle-Haldia for scrutiny of the assessee's case in contravention to CBDT Instruction is invalid, bad-in-law and liable to be annulled. And on the basis of notice under section 143(2) of the Act Assistant Commissioner of Income-tax, Circle-Haldia the assessment was completed by the Income-tax Officer, Ward-1, Haldia without issuing the notice under section 143(2) of the Income-tax Act, 1961 is also invalid, bad in law, void ab initio and liable to be annulled. 7. On the other hand the learned Departmental representative before us submitted that the assessee cannot raise the question on the jurisdiction of the Assessing Officer after the expiry of one month from the date on which he was served with the notice or after the completion of assessment, whichever is earlier in terms of the provisions of section 124(3) of the Act. 7.1 The learned Departmental representative further submitted that as per the provisions of section 127(3) of the Act no opportunity will be given to the assessee where the transfer of the jurisdiction is from one Assessing Officer is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reases their cost of compliance. The Board had considered the matter and is of the opinion that the existing limits need to be revised to remove the abovementioned hardship. An increase in the monetary limits is also considered desirable in view of the increase in the scale of trade and industry since 2001, when the present income limits were introduced. It has therefore been decided to increase the monetary limits as under : Income declared (mofussil areas) ITOs ACs/DCs Corporate returns Up to ₹ 20 lakhs Above ₹ 20 lakhs Non-corporate returns Up to ₹ 15 lakhs Above ₹ 15 lakhs Metro charges for the purpose of above instructions shall be Ahmedabad, Bangalore, Chennai, Delhi, Kolkata, Hyderabad, Mumbai and Pune. The above instructions are issued in supersession of the earlier instructions and shall be applicable with effect from April 1, 2011. See more at : http://taxguru.in/Income-tax/section-119-of-the- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te of filing of return by the assessee, which amounts to an assurance to the assessee that the return filed by him can be scrutinised by the Assessing Officer within three months of filing of the return. The Hon ble High Court, dismissing the appeal held that Instruction No. 9 of 2004 dated September 20, 2004, was applicable in the present case, in view of the specific stipulation in the circular that 'for returns filed during the current financial year 2004-05, the selection of cases for scrutiny will have to be completed within three months of the date of filing the returns' and considering that the return had admittedly, been filed by the assessee on October 29, 2004, i.e., during the current financial year 2004-05. The selection for scrutiny of the assessee's case and completion of the assessment was not valid. 6. We find that the Hon ble Chhattisgarh High Court in Sunita Finlease Ltd.'s case (supra) has also considered the decision of the Hon ble Supreme Court in the case of UCO Bank v. CIT [1999] 237 ITR 889 (SC) and quoted from page 896 as under : 'Such instructions may be by way of relaxation of any of the provisions of the sections specified t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as served on the assessee on October 19, 2004 fixing the date of hearing on December 16, 2004. When going through the order sheet entry, which is taken by the assessee from the assessment records clearly reveals that factually notice under section 143(2) was first time issued on October 18, 2004 and not on October 10, 2004. This fact has not been contested by the learned senior Departmental representative. Respectfully following the decision of the Hon ble Chhattisgarh High Court in the case of Sunita Finlease Ltd. (supra), we quash the issuance of notice under section 143(2) of the Act and subsequent assessment framed under section 143(3) of the Act. Appeal of the assessee is allowed. Keeping in view of the above and the facts relating to I. T. A. No. 1426/Kol/2011 this Tribunal has quashed the assessment framed under section 143(1) of the Income-tax Act since the issuance of notice under section 143(2) of the Act is beyond the dates specified in Instruction No. 9 dated September 20, 2004. At this juncture, we would like to clarify that Instruction No. 9 of 2004 dated September 20, 2004 referred by the Tribunal in I. T. A. No. 1426/Kol/2011 in the case of Ajanta Financial Ser ..... X X X X Extracts X X X X X X X X Extracts X X X X
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