SURYA AGRO PRODUCTS PVT. LTD., ,KOLKATA vs. ITO, WARD 9(1), , KOLKATA

IN THE INCOME TAX APPELLATE TRIBUNAL "D" BENCH, KOLKATA

BEFORE SHRI RAJESH KUMAR, AM AND SHRIPRADIP KUMAR CHOUBEY, JM

ITA No.691/KOL/2025 (Assessment Year:2012-13)

Surya Agro products Pvt. ltd.

49, kali Krishna Tagore Street, 5 th Floor, West Bengal-700007 Vs. Income Tax Officer, Ward 9(1),

P-7, Chowringhee Square, Esplanade, Kolkata-700069

(Appellant) (Respondent)

PAN No. AANCS2750B

Assessee by : Shri Sunil Surana, AR

Revenue by : Shri S.B. Chakraborthy, DR

Date of hear ing: 01 .09 .2025 Date of pronouncement: 16 .09.2025

O R D E R

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 24.03.2025 for the AY 2012-13.

- 02. The only legal issue pressed by the assessee during the course of hearing is against the order of ld. CIT (A) upholding the assessment framed by the ld. AO which is based on the invalid notice issued u/s 143(2) of the Act which is not in accordance with Act thereby, rendering the assessment framed to be invalid and nullity. - 03. The facts in brief are that the assessee filed the return of income on 30.09.2012, declaring total income at ₹1,09,605/-. Thereafter the

case of the assessee was selected for scrutiny under CASS, to examine the large share premium received and notice u/s 143(2) and 142(1) of the Act along with questionnaire were duly issued and served upon the assessee which were complied with by the assessee. The assessee received the share capital to the tune of ₹2,91,15,000/ during the instant financial year. The assessee filed all the evidences and details in respect of share subscribers. Besides, the ld. AO issued summon u/s 131 to the Director of the assessee company for personal deposition and producing certain information which were duly furnished before the ld. AO and statement were also recorded u/s 131 of the Act. Finally, the ld. AO, himself disbelieving the contention / submission of the assessee, added ₹2,91,15,000/- u/s 68 of the Act to the income of the assessee vide order dated 25.03.2015 u/s 143(30 of the Act.

- 05. The ld. DR on the other hand submitted that there is no need to issue any fresh notice after the notice has been issued u/s 143(2) of the Act by the earlier AO. The ld. DR heavily relied on the order of the ld. lower authorities and submitted that the issue raised by the assessee may kindly be dismissed. The ld. DR has also filed a detailed submission dated 01.09.2025, which has been carefully examined and perused. - 06. After hearing the rival contentions and perusing the materials available on record, we find that apparently the case has been transferred from ITO Ward 10(2), Kolkata on 05.01.2015, who has issued notice u/s 143(2) of the Act to ITO Ward 9(4), Kolkata. We also note that the ITO Ward 9(4), Kolkata has framed the assessment de hors any notice u/s 143(2) of the Act and therefore, the ITO Ward 9(4), lacks the jurisdiction to frame the assessment. This is a statutory notice which gives jurisdiction to the ld. AO to pass the order in absence of which the assessment framed is nullity and cannot be sustained. The case of the assessee find support from the decision of ARS Financial Consultants Pvt. ltd.(supra), wherein the coordinate bench has held as under: -

- "2.4 After hearing the rival contentions and perusing the materials available on record, we find that the notice that the assessee filed the return of income for the impugned assessment year on 29.11.2012, with ITO, Ward 4(1)/ Kol while the notice u/s 143(2) of the Act was issued by ITO, Ward 34(1), Kolkata on 29.08.2013, a copy of which is available at page no.431 of the Paper Book. Thereafter the assessee wrote to the Commissioner of Income Tax, Kolkata-XII, Aayakar Bhawan Poorva, Kolkata, informing that the jurisdiction of the assessee has been allotted to ITO Ward-34(1)/ Kolkata, whereas being a private limited company jurisdiction lies with ITO Ward 4(1), Kol under CIT -II/Kol and accordingly, requested the commissioner to migrate the PAN in proper jurisdiction. The notice u/s 142(1) dated 10.02.2015, was issued by ITO Ward 4(3), Kolkata calling upon the assessee to furnish the various details and information which were accordingly, submitted also before the ld. AO and the assessment was accordingly framed by ITO Ward 4(3) Kolkata. Thus, we note that the ITO, Ward 4(3), Kolkata has not issued the jurisdictional notice u/s 143(2) of the Act which is a serious lapse on the part of the AO which goes to the root of the matter rendering the assessment framed u/s 143(3) of the Act by the ld. AO to be nullity and invalid in the eyes of law. The case of the assessee s squarely covered by the following decisions namely i) PCIT Vs. Nopany & Sons (supra) and ii) PCIT Vs Cosmat Traders (P) Ltd. (supra). In both the above decisions, the Hon'ble Kolkata High Court has held that the assessment framed by the jurisdictional AO without issuing notice 8u/s 143(2) of the Act is invalid while notice u/s 143(2) was issued by the non-jurisdictional AO. Therefore we, accordingly, hold that the assessment framed by the AO Ward -4(3) Kolkata is invalid and is accordingly quashed. The ground no. 1 is allowed. - 3. In the result, the appeal of the assessee is allowed." - 07. Similar issue has been laid down by Hon'ble High Court in case of Raghvendra Mohta (supra), wherein the Hon'ble Court has held as under: -

"We have heard Mr. Prithu Dudhoria, learned advocate for the appellant and Mr.Abhratosh Mazumder, learned senior counsel assisted by Mr. Avra Mazumder, learnedadvocate for the respondent.

The assessee preferred appeal before the learned Tribunal challenging theorder passed by the Commissioner of Income Tax (Appeals)-10, Kolkata [CIT(A)] dated26.9.2017. One of the grounds urged before the learned Tribunal was that theAssessing Officer, who passed the assessment order did not have jurisdiction over thecase of the assessee and, therefore, the notice as well as the assessment order are badin law. The learned Tribunal took note of the facts and circumstances of the case andfound that the assessee filed its return of income declaring the income to be nil.

Subsequently, notice under section 143(2) was issued on 10.9.2015 and notice undersection 142(1) dated 13.6.2016 was issued along with the questionnaire. The assesseecontended that the notices were without jurisdiction and relied upon section 120 ofthe Act. In this regard, the assessee referred to the notification issued by the CBDT inInstruction No.1 of 2011. The learned Tribunal took into consideration the facts of thecase and found that the assessment has been framed by the Assessing Officer, whoinherently lacks jurisdiction to do so.

The learned Tribunal took note of the decision of a Co-ordinate Bench of thelearned Tribunal in the case of Bhagyalaxmi Conclave (P) Ltd. vs. DCIT dated 3.2.2021.Apart from other decisions and allowed the assessee's appeal, the revenue hadchallenged the order passed in the case of Bhagyalaxmi Conclave (P) Ltd. before thiscourt in ITAT/221/2022 etc. and by a judgment reported in 2022 (12) TMI 1514, theappeal filed by the department was dismissed wherein one of the questions framed isidentical to the substantial questions of law suggested by the revenue in the instantcase. Thus, we find that the learned Tribunal was right in allowing the assessee'appeal and setting aside the order passed by the Assessing Officer on the ground oflack of inherent jurisdiction.

For the above reason, the appeal is dismissed and the substantial questions oflaw are answered against the revenue."

- 08. We therefore, respectfully following the decision of the coordinate bench and Hon'ble High Court quash the assessment framed by the ld. AO on the ground of lack of jurisdiction. - 09. In the result, the appeal of the assessee is allowed.

Order pronounced in the open court on 16.09.2025.

Sd/- Sd/- (PRADIP KUMAR CHOUBEY) (RAJESH KUMAR)

(JUDICIAL MEMBER) (ACCOUNTANT MEMBER)

Kolkata, Dated: 16.09.2025

Sudip Sarkar, Sr.PS

Copy of the Order forwarded to:

- 1. The Appellant - 2. The Respondent - 3. CIT - 4. DR, ITAT, - 5. Guard file.

BY ORDER,

True Copy//

Sr. Private Secretary/ Asst. Registrar Income Tax Appellate Tribunal, Kolkata