KRISHNA BHATIA,CHENNAI vs. ITO, NCW-1(2), CHENNAI

Assessee has raised various grounds of appeal including legal issue Ground No.7. Legal issue as per the assessee is re-framed as under:-

Explaining the legal issue, the Ld. AR submitted that the impugned notice issued on 31.03.2022 u/s.148 of the Act, by the AO/ITO Non Corp Ward 1(2) Chennai, is non-est in eyes of law because, the notice issued by the AO prior to issuance of notice u/s.148 of the act, i.e. notice u/s.148A(b) of the Act dated 21.03.2022, itself was bad in law. According

Thus, according to Ld. AR, when the very event of reopening of the assessment by the AO for the AY 2015-16 itself was invalid for want of jurisdiction, consequent action of the AO is vitiated and the assessment order is a nullity in eyes of law.

Per contra, the Ld. DR vehemently supports the impugned action of the Ld. CIT(A) and pointed out that no prejudice was caused to the assessee since assessee participated in the assessment proceedings. Further according to Ld DR, assessee didn’t raise this legal issue before CIT(A), hence he wants us to dismiss the legal issue.

In his rejoinder, the Ld. AR submitted that the assessee has raised the legal issue which assessee is entitled to do because it is settled law that the jurisdiction can be challenged at any stage/proceedings and even

In the light of the aforesaid averments, the Ld AR wants us to adjudicate this legal issue.

Having heard both parties, we examine the legal issue. For doing that first of all we have to examine whether the AO in the present case could have validly reopened the assessment of the assessee by issuance of notice dated 21.03.2022 u/s.148A(b) of the Act which resulted in issuance of notice u/s.148 of the Act on 31.03.2022 and thereafter, framed assessment u/s.147/143(3) on 27.03.2023.

As noted, we find that the AO had issued the statutory reopening notice u/s.148 of the Act on 31.03.2022 after issuance of notice u/s.148A(b) dated 21.03.2022. The notice u/s.148A(b) of the Act is noted to have given only six (6) days time to respond, which omission on the part of AO not to have offered seven “7” days time to assessee to reopened vitiates the action of AO to reopen the assessment itself. In this regard, it would be gainful to refer to Section 148B(b) of the Act, which reads as under:- Section 148A(b) of the Act. "148A (b) provide an opportunity of being heard to the assessee, by serving upon him a notice to show cause within such time, as may be specified in the notice, being not less than seven days and but not exceeding thirty days from the date on which such notice is issued, or such time, as may be extended by him on the basis of an application in this behalf, as to why a notice under section 148 should not be issued on the basis of information which suggests that income chargeable to tax has escaped assessment in his case for the relevant assessment year and results of enquiry conducted, if any, as per clause (a);" [Emphasis supplied].

From bare perusal of Section 148A(b) it appears that minimum 7 days is required to be given to the Assessee for filing reply. This 7 day is to be calculated by ignoring the date of issue and the last date of

In this regard reference may be made to the case of Pioneer Motors (Private) Ltd. Vs. Municipal Council, Nagercoil reported in AIR 1967 SC 684 wherein at paragraph 8 and 9 the Hon'ble Apex Court has deliberated the issue with regard to counting of dates. 8. The words "not being less than one month" do imply that clear one month's notice was necessary to be given, that is, both the first day and the last day of the month had to be excluded………………….. "When...... 'not less than' so many days are to intervene, both the terminal days are excluded from the computation” ……………………………………… 9…………………………………In every case the words have to be construed in the context taking into consideration the language used and the object to be achieved. As we have said above, the use of the words “not being less than one month” implies the giving of a clear month excluding both the first and the last day of the month ………………………………………………………………………………………………………………… [Emphasis supplied].

Thus, we see that the law is no more res-integra, inasmuch as, the words ‘not be less than 7 days’ implies that clear seven days is obligatory to be given to the Assessee. Applying the principle, in this case, the AO by issuing notices, u/s.148A(b) of the Act dated 21.03.2022, has directed the assessee to respond to his notice by 28.03.2022, meaning the assessee was given only six (6) clear days for responding to the notice of AO, which impugned action we find is not in consonance with the Section 148A(b) of the Act (refer decision of Hon’ble the High Court of Jharkhand at Ranchi in W.P.(T) No. 2640 of 2023 dated 28.08.2023).

In this case, since the impugned notice u/s.148A(b) of the Act has been issued by the AO, in contravention to Section 148A(b) of the Act, the notice u/s.148 dated 31.03.2022 is invalid and hence assessment completed on 27.03.2023 based on the invalid notice u/s 148A(b) of the Act is held to be non-est in the eyes of law, so it is a nullity.

In the result, appeal filed by the assessee is allowed.