CHINMOY MONDAL,BURDWAN vs. ACIT, CIRCLE 1, , BURDWAN
Before: SHRI RAJESH KUMAR, AM & SHRIPRADIP KUMAR CHOUBEY, JM Chinmoy Mondal C/o S.N. Ghosh & Associates, Advocates 2, Garstin Place, 2 nd Floor, Suite No.203, Off hare Street, Kolkata-700001, West Bengal Vs. ACIT, Circle-1, Burdwan Asst. Commissioner of Income Tax, Circle 1, Burdwan, Aaykar Bhawan Poorva, Kachari Road, Court Compound, P.O. & P.S. Burdwan, Dist. Purba Barddhaman-713101, West Bengal (Appellant) (Respondent) PAN No. ADZPM8111E
Per Rajesh Kumar, AM:
This is an appeal preferred by the assessee against the order of the National Faceless Appeal Centre, Delhi (hereinafter referred to as the “Ld. CIT(A)”] dated 25.02.2025 for the AY 2014-15. 02. During the course of hearing the assessee pressed ground no.2, which is extracted below: -
“2. FOR THAT the Ld. Commissioner of Income Tax (Appeals)-NFAC erred in upholding the validity of the impugned notice dated 27-07-2022 issued u/s. 148
of the Income Tax Act, 1961 and the consequential assessment order framed u/s. 147/144 of the Income Tax Act, 1961 by the Id. Assistant Commissioner of Income Tax, Circle 1. Burdwan in absolute infringement of the C.B.D.T.
Chinmoy Mondal; A.Y. 2014-15
Instruction No. 1/2011 dated 31-01-2011 and the purported action on that behalf is altogether unfounded, unjustified and untenable in law.”
03. The facts in brief are that the assessee filed the return of income on 31.10.2014, declaring total income of ₹14,09,760/-.
The assessment was framed in this case u/s 143(3) of the Income-tax Act,
1961 (the Act) vide order dated 30.12.2016, accepting the returned income. Thereafter, the case of the assessee was reopened u/s 147 of the Act by issuing notice u/s 148 of the Act on 27.07.2022, which was apparently after 01.04.2021. The said notice was treated as issued notice u/s 148A(b) of the Act in accordance with the decision of the Hon'ble Apex Court in the case of Ashish Agarwal (Civil appeal No.
305/2022). Thereafter, the order u/s 148A(d) of the Act was also passed. However, the assessee did not file any return of income during the year as stated above. The assessee declared total income of ₹14,09,760/-and the case was in the juri iction of the ITO, whereas the notice dated 27.07.2022, has been issued by ACIT,
Circle-1, Bardhaman, copy of which is available at page no.18 of the Paper Book. The assessment was also framed by the ld. ACIT, Circle-
1, Bardhaman.
04. The assessee challenged the said issuance of notice by the ACIT,
Circle-1, Bardhaman and consequently passing the order by the same authority on the ground that same is in violation of CBDT instruction no.1/2011 (F.No.187/12/2010-IT(A-1), dated 31.01.2011, which provides that assessment shall be framed by the learned AO in accordance with aforesaid CBDT instruction.
05. Therefore, notice issued by the ld. JCIT is bad in law and so is the assessment framed u/s 147 read with section 144 of the Act. In defense of his argument the ld. AR relied on the decision of Ashok
Chinmoy Mondal; A.Y. 2014-15
Devichand Jain vs. Union of India [2023] 151 taxmann.com 70
(Bombay)/[2023] 452 ITR 43 (Bombay)[08-03-2022], wherein a similar issue has been decided in favour of the assessee by the court by observing and holding as under:-
“2. The primary ground that has been raised is that the Income-tax Officer who issued the notice under section 148 of the Act, had no juri iction to issue such notice. According to Petitioner as per instruction No. 1/2011 dated 31st
January, 2011 issued by the Central Board of Direct Taxes, where income declared/returned by any Non-Corporate assessee is up to Rs. 20 lakhs, then the juri iction will be of ITO and where the income declared returned by a Non
Corporate assessee is above Rs. 20 lakhs, the juri iction will be of DC/AC.
3. Petitioner has filed return of income of about Rs. 64,34,663/-and therefore, the juri iction will be that of DC/AC and not ITO. Mr. Jain submitted that since notice under section 148 of the Act has been issued by ITO, and not by DC/AC that is by a person who did not have any juri iction over Petitioner, such notice was bad on the count of having been issued by an officer who had no authority in law to issue such notice.
4. We have considered the affidavit in reply of one Mr. Suresh G. Kamble, ITO who had issued the notice under section 148 of the Act. Said Mr. Kamble, ITO,
Ward 12(3)(1), Mumbai admits that such a defective notice has been issued but according to him, PAN of Petitioner was lying with ITO Ward (12)(3)(1),
Mumbai and it was not feasible to migrate the PAN having returned of income exceeding Rs. 30 lakhs to the charge of DCIT, Circle 12(3)(1), Mumbai, as the time available with the ITO 12(3)(1) was too short to migrate the PAN after obtaining administrative approval from the higher authorities by 31st March,
2019. 5. The notice under section 148 of the Act is juri ictional notice and any inherent defect therein is not curable. In the facts of the case, notice having been issued by an officer who had no juri iction over the Petitioner, such notice in our view, has not been issued validly and is issued without authority in law.
6. In the circumstances, we have no hesitation in setting aside the notice dated
30th March, 2019. 7. Consequently the order dated 18th November, 2019 rejecting Petitioner's objection is also quashed and set aside.
8. Petition disposed.
9. No order as to costs.”
Chinmoy Mondal; A.Y. 2014-15
The ld. DR on the other hand submitted that the issue was not raised before the ld. AO and the appeal was also ex-parte before the ld. CIT (A). Therefore, the same may be restored to the file of the ld. lower authorities for making decision on the issue. 07. After hearing the rival contentions and perusing the materials available on record, we find that in this case, the assessee declared total income at ₹14,09,760/- as per the return file don 30.10.2014. Thus, the juri iction to issue notice u/s 148 of the Act apparently lies with the ld. ITO and not with the ld. ACIT as provided in the CBDT instruction no.1/2011 (F.No.187/12/2010-IT(A-1), dated 31.01.2011. The said instruction is extracted below: ““Instruction No.1/2011 [F.No.187/12/2010-ΙΠ(A-1), DATED 31-1-2011 References have been received by the Board from a large number of taxpayers, especially from mofussil areas, that the existing monetary limits for assigning cases to ITOs and DCS/ACs is causing hardship to the taxpayers, as it results in transfer of their cases to a DC/AC who is located in a different station, which increases 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.
Income declared (mofussil areas)
Income declared (metro cities)
ITOs
Acs/ DCs
ITOs
DCs/ Acs
Corporate returns
Upto ₹20 lcs
Above ₹20 lacs
Upto ₹30 lacs
Above ₹30 lacs
Non-corporate returns
Upto ₹15 lacs
Above ₹15 lacs
Upto ₹20 lacs
Above ₹20 lacs
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:
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 1-4-2011."
08. The case of the assessee find support from the decision of Hon'ble Bombay High Court in case of Ashok Devichand Jain vs. Union
Chinmoy Mondal; A.Y. 2014-15
of India (supra). Therefore, we squarely following the decision of the Hon'ble Bombay High Court, quash the assessment framed by the ld.
AO for lack of inheritance juri iction.
09. In the result, the appeal of the assessee is allowed.
Order pronounced in the open court on 15.10.2025. (PRADIP KUMAR CHOUBEY)
(RAJESH KUMAR)
(JUDICIAL MEMBER)
(ACCOUNTANT MEMBER)
Kolkata, Dated: 15.10.2025
Sudip Sarkar, Sr.PS
Copy of the Order forwarded to:
BY ORDER,//
Sr. Private Secretary/ Asst.