INCOME TAX OFFICER, WARD - 42(1),, MURSHIDABAD vs. ABHOY KUMAR JAIN, AURANGABAD, JANGIPUR

It was submitted by the ld. Sr. DR that the ld.CIT(A) has quashed the assessment, insofar as he has held that notice u/s.143(2) of the Act was not in compliance with the instruction issued by the CBDT in Instruction No. 1/2011 [F. NO. 187/12/2010-IT(A-I)], dated 31- 1-2011. It was the submission that the assessee has not intimated this defect before the Assessing Officer in line with the provisions of Section 124(3) of the Act. It was the prayer that the order of the ld.CIT(A) be reversed and that of the ld.AO be restored.

We have considered the rival submissions and perused the order of the ld. CIT(A). A perusal of the order of the ld. CIT(A) shows that the ld.

CIT(A) has followed the judicial discipline, insofar as in para 6.1.2 of the order he has followed the decision of the Hon’ble Jurisdictional High Court in the case of CIT Vs. Nopany & Sons, reported in 2022(2) TMI 399- Calcutta High Court. When a legal issue is being raised on the basis of subsequent decision of the Hon’ble High Courts/Hon’ble Supreme Court, obviously the provisions of Section143(2) of the Act cannot be complied with by the assessee. It must also be mentioned here that the Hon’ble Punjab & Haryana High Court in the case of Crystal Phosphates Ltd., reported in [2023] 152 taxmann.com 232(P&H)/[2024] 461 ITR 289 (Punjab & Haryana), has categorically held as follows :- 10. All the conditions of the circular were fulfilled by the assessee and as per CBDT circular, the case of the assessee could not be re-opened for scrutiny. The appeal filed by the revenue was dismissed by the High Court by referring to the judgment passed by Hon'ble the Supreme Court in UCO Bank's case (supra).

To the same effect is the judgment passed by the Calcutta High Court in Amal Kumar Ghosh v. Asstt. CIT [2014] 45 taxmann.com 482/225 Taxman 229 (Mag.)/361 ITR 458/[2014] 105 DTR 351, wherein it has been held that during the financial year 2004-05, the selection of case for scrutiny had to be completed within 3 months of the date of filing of return. In that case, return was filed on 29- 10-2004 and selection of case for scrutiny was done on 6-7-2005 i.e. the beyond the period of three months. It was held that instructions of CBDT were violated, as the circulars were binding upon the department. The Department was bound by that standard and could not act with discrimination. Finally, the appeal was allowed.

In the facts of the present case, the Tribunal has followed the guidelines issued by Hon'ble the Supreme Court as stated above and has observed that with respect to the notice dated 27-11-2007. The appellant submitted reply on 18-1-2008 and had taken up the issue with regard to jurisdiction of the assessing authority to issue such notice. Hence, the Tribunal has rightly observed that it cannot be held that the appellant had acquiesced to the jurisdiction. As per CBDT instructions, the burden was on the authority assuming jurisdiction to show and establish that such instructions have been duly complied and satisfied in letter and spirit. Since notice under section 143 (2) of the Act was not in terms of the instructions of the CBDT, both the notice and the assessment framed were held to be without valid jurisdiction and were accordingly, quashed.

This being so, respectfully following the decision of the Hon’ble Jurisdictional High Court as referred by the ld.CIT(A) in para 6.1.2 of his order as also the principle laid down by the Hon’ble Punjab & Haryana High Court in the case of Crystal Phosphates Ltd, referred to supra, we find no error in the order of the ld.CIT(A) which calls for any interference. Consequently, the appeal of the revenue stands dismissed.

In the result, appeal of the revenue is dismissed. Order dictated and pronounced in the open court on 09/12/2025.