RITESHH AGARWAL,KOLKATA vs. ITO, NFAC, , DELHI

PER RAJESH KUMAR, ACCOUNTANT MEMBER 1. This appeal arises from order dated 28.02.2025, passed u/s 250 of the Income Tax Act, 1961 (hereafter “the Act”) by the Ld. Commissioner of Income Tax (Appeals), National Faceless Appeal Centre (NFAC), Delhi [hereafter “the Ld. CIT(A)]. 2 At the time of hearing, the Ld. Counsel for the assessee pressed Ground No. 4 which is extracted as under. “4. That on the facts and on the circumstances of case, since the AO had never issued a valid notice under section 143(2) of the Act, the assessment so framed by the AO is liable to be quashed/cancelled/set aside following the various decisions of the Courts of the Country.” 3. Brief facts of the case are that the assessee filed its return of income on 02.07.2018 declaring total income of Rs. 15,47,510/- which was 2 Riteshh Agarwal processed u/s 143(1) of the Act. Thereafter, the case of the assessee was reopened u/s 147 of the Act by issuing notice u/s 148 of the Act on 29.03.2022. The AO noted that the assessee failed to file his ITR in response to notice u/s 148 of the Act and stated in the assessment order that assessment was being passed u/s 144 of the Act by making an addition of Rs. 1,05,00,000/- in respect of unexplained money u/s 69A of the Act. 4. In the appellate proceedings, the Ld. CIT(A) restored the issue to the file of Ld. AO with a direction to decide the same after providing the assessee a reasonable opportunity of being heard qua the issue as raised in ground No. 4, that no notice u/s 143(2) of the Act was issued. 5. During the course of hearing on 05.08.2025, the bench directed the assessee to file an affidavit supporting the averment that the AO has not issued any notice u/s 143(2) of the Act which was filed by the assessee during the course of hearing on 09.09.2025 stating therein on oath that no notice was ever issued to the assessee at all by the AO u/s 143(2). The fact was confronted to the DR also who admitted that though the assessee requested the AO by way of letter dated 29.04.2022 that the return filed originally may kindly be treated as return in response to notice u/s 148 of the Act dated 29.03.2022. The assessee again requested the AO about the none issuance of notice by the AO vide letter dated 14.03.2023, a copy of which is available at page No. 23 to 38 in which para 8, the assessee again brought to the notice of the AO qua the assessee return of income having been filed u/s 139(1) of the Act which may be taken in compliance to the notice u/s 148 of the Act. Again the AO failed to take cognizance of the same. We note that in the assessment order in para 1 the AO has categorically mentioned that the assessee has failed to file in ITR in response to notice u/s 148 of the Act and further stated that therefore the order is framed u/s 147r.w.s. 144 of the Act. The Ld. DR submitted that only because of this misunderstanding the AO had not issued any notice u/s 143(2) of the Act.

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Riteshh Agarwal

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Riteshh Agarwal

Copy of the order forwarded to:
1. Appellant
2. Respondent
3. Pr. CIT
4. CIT(A)

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By order