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Income Tax Appellate Tribunal, ‘SMC’ BENCH, KOLKATA
Before: Shri Rajpal Yadav, Vice- & Shri Rajesh Kumar
Per Shri Rajpal Yadav, Vice-President (KZ):- The assessee is in appeal before us against the order of ld. Commissioner of Income Tax (Appeals), National Assessment Year : 2013-2014 Kalpana Agarwal Faceless Appeal Centre (NFAC), Delhi dated 10th August, 2022 passed for assessment year 2013-14.
Originally the assessee has taken three grounds of appeal. In Ground No. 1, she has challenged the addition of Rs.12,58,188/-. During the course of hearing, on earlier occasion the assessee has filed an application for permission to raise additional ground of appeal. Her application was allowed and she was permitted to raise additional ground of appeal. The order of the ITAT dated 12.01.2023 reads as under:-
“12.01.2023: The assessee is in appeal before the Tribunal against the order of ld. Commissioner of Income Tax (Appeals), National Faceless Appeal Centre (NFAC), Delhi dated 10.08.2022 passed for Assessment Year 2013-14. 2. Originally the assessee has taken four grounds of appeal
, out of which Ground No. 1 is the substantial ground of appeal, whereby the assessee has challenged confirmation of addition of Rs.12,58,188/-. The ld. Counsel for the assessee submitted that assessee has raised an additional ground of appeal, which reads as under:- “For that the assessment order is bad in the eyes of law in the absence of issue of notice u/s 143(2) by the Assessing Officer, i.e. ITO- Ward-30(1), Kolkata, passing the order and accordingly the order is unsustainable”.
3. The ld. Counsel for the assessee submitted that territorial jurisdiction over the assessee is of ITO, Ward- 11(1) as per the PAN data. The original notice for scrutinizing the return issued under section 143(2) was by ITO, Ward-11(1), but ultimately the assessment order has been passed by ITO, Ward-30(1), Kolkata. Therefore, according to him, this assessment order is void ab initio because it has been passed by an Assessing Officer, who 2 Assessment Year : 2013-2014 Kalpana Agarwal was not having territorial jurisdiction over the assessee. In order to buttress this additional ground of appeal
, ld. Counsel for the assessee submitted that assessee has tried her best to obtain necessary details from the Department. Her Authorized Representative had visited 3- 4 times to the ld. Assessing Officer for inspection of the assessment order, but the assessment record was not traceable being an old one.
4. We find an inherent contradiction between taking cognizance of return for passing a scrutiny assessment under section 143(3) vis-a-vis ultimately passing of the assessment order by the ld. Income Tax Officer. It is very difficult for us to determine whether jurisdiction over the assessee was changed during the pendency of assessment proceeding because nothing is discernable in the assessment order to this effect. Therefore, we deem it appropriate to admit this ground of appeal and direct the ld. Departmental Representative to call for a remand report from the ld. Assessing Officer justifying the jurisdiction over the assessee by both the ITOs i.e. for the purpose of initiation of scrutiny assessment by issuance of a notice under section 143(2) within the time limit available in the proviso under section 143(2) as well as ultimate passing of the assessment order. This exercise be completed before the next date of hearing. Hearing is adjourned to 6th of March, 2023. Copy of 5. this order-sheet be supplied to both the parties for compliance. Sd/- Sd/- Girish Agrawal Rajpal Yadav Accountant Member Vice-President (KZ)”
In response to this Interim Order, the ld. Assessing Officer has sent his comments vide letter dated 05.04.2023. It is worth to take note of this letter, which reads as under:- Assessment Year : 2013-2014 Kalpana Agarwal
In the light of above development, let us consider the facts and circumstances. A perusal of the assessment order would reveal that the assesese has filed her return Assessment Year : 2013-2014 Kalpana Agarwal of income on 31.03.2014 under section 139(1) of the Income Tax Act declaring total income of Rs.6,49,200/-. The assessment order has been passed on 29.03.2016 by ITO, Ward-30(1), Kolkata. According to the additional ground of appeal, the assessee has submitted that jurisdiction over her rest with ITO, Ward-11(1), Kolkata as per the PAN data. Since assessment order has been passed by the ITO, Ward-30(1), Kolkata, therefore, this assessment order is without jurisdiction.
We have put a specific question to the Revenue and sought the report from the ld. Assessing Officer. A perusal of the report sent by the ld. Assessing Officer would reveal that jurisdiction over the assessee is of ITO, Ward-11(1) and not with ITO, Ward-30(1). Ld. Counsel for the assessee during the course of hearing put reliance upon the judgment of the Hon’ble Calcutta High Court in the case of Kusum Goyal –vs.- ITO rendered in G.A. No. 81 of 2010 with Writ Petition No. 1229 of 2009. He also put reliance upon the order of the ITAT, Kolkata ‘C’ Bench dated 11.02.2022 in the case of ACIT, Circle- 29, Kolkata –vs.- Shri Debabrata Kayal in ITA No. 06/KOL/2021. He placed on record copies of both these judgments but without going much in these propositions, we are satisfied that assessment order has been passed by the ld. Assessing Officer, who was not having territorial justification over the assessee, hence the Assessment Year : 2013-2014 Kalpana Agarwal assessment is void ab initio. Accordingly, we quash the assessment order.
In the result, the appeal of the assessee is allowed. Order pronounced in the open Court on May 4th, 2023.