VIVEK TRACOM PVT. LTD.,KOLKATA vs. I.T.O., WARD - 5(1), KOLKATA

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ITA 2522/KOL/2024Status: DisposedITAT Kolkata18 September 2025AY 2017-20187 pages
AI SummaryAllowed

What did the Tribunal hold?

The Tribunal admitted the additional ground, holding that a legal issue can be raised for the first time before any appellate authority if all facts are on record and no further investigation is needed. The Tribunal found that the notice issued under Section 143(2) dated 13.09.2018 was indeed issued in violation of CBDT Instruction No. F. No. 225/157/2017/ITA-II dated 23.06.2017, as it only specified 'computer aided scrutiny selection' without mentioning limited, complete, or compulsory manual scrutiny. Following the decisions of the Supreme Court in Jute Corporation of India Ltd. vs. CIT and National Thermal Power Co. Ltd. v. CIT, the Calcutta High Court in PCIT vs. Britannia Industries Ltd., and a co-ordinate bench decision in Tapas Kumar Das vs. ITO, the Tribunal held that the violation of CBDT instructions renders the notice invalid and all consequential proceedings void ab initio. Therefore, the assessment framed was quashed. The appeal was allowed on this legal ground, and other grounds on merit were left undecided.

What were the facts?

The assessee, Vivek Tracom Pvt. Ltd., filed an appeal against the order of the National Faceless Appeal Centre, Delhi, for Assessment Year 2017-18. The assessee raised an additional ground challenging the validity of the notice issued under Section 143(2) of the Income Tax Act, 1961. The assessee contended that the notice was issued in an invalid format, violating CBDT Instruction No. F. No. 225/157/2017/ITA-II dated 23.06.2017, rendering the assessment order void ab initio. The Revenue argued that the issue was not raised before lower authorities and should be restored. The Tribunal admitted the additional ground as it was a legal issue with available facts.

What were the issues?

1. Whether the additional ground of appeal challenging the validity of the notice under Section 143(2) of the Income Tax Act, 1961, can be admitted for adjudication by the Tribunal, even if not raised before lower authorities? (Question of law) Assessee's contention: The additional ground is a purely legal issue that goes to the root of the matter, requires no further factual investigation, and can be raised at any stage before appellate authorities. Reliance was placed on Supreme Court decisions in Jute Corporation of India Ltd. vs. CIT and National Thermal Power Co. Ltd. v. CIT, and Calcutta High Court decision in PCIT vs. Britannia Industries Ltd. Revenue's contention: The issue was not raised before the lower authorities and should be restored to them for adjudication. 2. Whether the notice issued under Section 143(2) of the Income Tax Act, 1961, dated 13.09.2018, is invalid for not specifying whether it was for limited scrutiny, complete scrutiny, or compulsory manual scrutiny, thereby violating CBDT Instruction No. F. No. 225/157/2017/ITA-II dated 23.06.2017? (Question of mixed law and fact) Assessee's contention: The notice did not adhere to the prescribed formats in the CBDT instruction, making it invalid and the consequent assessment order void ab initio. Reliance was placed on the co-ordinate bench decision in Tapas Kumar Das vs. ITO. Revenue's contention: The notice being computer-generated and not mentioning the type of scrutiny does not invalidate the notice under Section 143(2).

Which sections of the Income-tax Act were involved?

Section 143(2),Section 119

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Income Tax Appellate Tribunal, “B” BENCH, KOLKATA

Before: SHRI RAJESH KUMAR, AM & SHRISONJOY SARMA, JM

For Appellant: Shri Sunil Surana, AR
For Respondent: Shri Pankaj Pandey, DR
Hearing: 09.09.2025Pronounced: 18.09.2025

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 23.10.2024 for the AY 2017-18.

2.

At the time of hearing, the assessee raised additional ground which is extracted below:

In this connection it is submitted that the notice u/s 143(2) issued by the Assessing Officer is bad in law. Therefore, the assessee is filing herewith an additional ground which goes to the root of the issue and no fresh investigation of facts is required In view of the Judgment of the Hon'ble Supreme Court in the case of Jute Corporation of India reported in 187 ITR page 688 and National Thermal Power Corporation reported in 229 ITR 383 the additional ground may be admitted.

4.

The ld. DR on the other hand submitted that the issue was not raised before any of the authorities below and therefore, may kindly be restored to the file of any of the authorities below for adjudication.

5.

After hearing the rival contentions and perusing the material on record, we find that the assessee has raised an additional ground of appeal challenging the validity of the notice issued u/s 143(2) of the Act being in an invalid format and in our opinion the issued raised in the additional ground is a purely a legal issue qua which all the facts are available in the appeal folder and no further verification of facts are required from any quarter whatsoever. In our considered view the

6.

The ld. AR vehemently submitted that the notice u/s 143(2) of the Act dated 13.09.2018, does not specify whether it is a limited scrutiny or a complete scrutiny or a compulsory manual scrutiny. The ld. AR submitted that the CBDT has issued specific instruction vide instruction no. F. No. 225/157/2017/ITA-II Dated 23-06-2017, that the notice u/s 143(2) can be issued in one of the three format which specifically mentioned and prescribed but the present notice issued is not in accordance with such said instruction and therefore, the assessment framed consequently is invalid and void ab initio. The ld. AR in defense of his argument relied on the decision of Tapas Kumar Das Vs. ITO in vide order dated 11.03.2025 for A.Y. 2017-18, wherein similar issue has been decided in favour of the assessee. The ld. AR therefore prayed that the additional ground raised by the assessee may kindly be allowed.

7.

The ld. DR on the other hand submitted that this is a computer- generated notice and the non-mentioning of the fact of either limited or complete scrutiny or compulsory manual scrutiny would not render the issuance of notice u/s 143(2) of the Act as invalid. Therefore, additional ground raised by the assessee may kindly be dismissed.

“After hearing the rival contentions and perusing the materials available on record, we find that particularly the notice was issued u/s 143(2) of the Act, a copy of which is available at page no. 25 of the Paper Book. We note that the said notice has not been issued in consonance with the CBDT Instruction F No. 225/157/2017/ITA-II Dated 23.06.2017. The said notice is extracted below for the sake of ready reference:- ““आमकरअधिनियम 1961 कीिारा 143(2) केअिीििोटिस Notice under section 143(2) of the Income-tax Act, 1961 संवीक्षा (कंप्यूिरआिाररतसंवीक्षाचयि Scrutiny (Computer Alded Scrutiny Selection) महोदय/महोदया/ भेससस, Sir/Madam/ M/s, आपकोसूधचतककयाजाताहैककनििासरणवर्स केपावतीसंख्या 2017-18 269322761301017 केअिुसारआपकेद्वाराटदिांक 30/10/2017 कोदाखिलकीगईआयकरवववरणीकोसंवीक्षाकेललएचुिागयाहै। This is for your kind information that the return of income filed by you for assessment year 2017-18 vide ack, no. 269322761301017 on 30/10/2017 has been selected for Scrutiny.

10.

Since, we have allowed the appeal of the assessee on legal issue, the other grounds raised on merit are not being adjudicated at this stage and are being left open to be decided at the later stage if need arises for the same.

11.

In the result, the appeal of the assessee is allowed.

Order pronounced in the open court on 18.09.2025.

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