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Facts
The appeals were filed by the assessee against orders of the CIT(A) for AY 2014-15, 2017-18 & 2018-19. The appeals were filed belatedly by 120 days, which was condoned by the tribunal.
Held
The tribunal admitted an additional ground raised by the assessee challenging the validity of the notice issued under Section 143(2) of the Income Tax Act, 1961, stating it was not issued in accordance with CBDT instructions. The tribunal held that the notice was invalid, making the assessment framed thereunder void ab initio.
Key Issues
Whether the notice issued under Section 143(2) of the Income Tax Act, 1961, was valid in light of CBDT instructions, and if not, whether the consequential assessment is sustainable.
Sections Cited
143(2), 143(3)
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Income Tax Appellate Tribunal, “SMC” BENCH, KOLKATA
Before: SHRI RAJESH KUMAR
O R D E R These are the appeals filed by the assessee against the separate orders all dated 15.03.2023, passed by the ld. CIT(A), National Faceless Appeal Centre, (NFAC), Delhi for the Assessment Year 2014-2015, 2017- 2018 & 2018-2019.
As per the office record, it is found that all the three appeals of the assessee are filed belatedly by 120 days each. Looking to the facts and circumstances of the case, we condone the delay of 120 days each in fling all the three appeals and the appeals are admitted for adjudication.
As similar grounds have been taken by the assessee in all the three appeals, therefore, for the sake of convenience, the grounds raised in ITA
At the time of hearing, ld. counsel of the assessee raised an additional ground challenging the validity of assessment framed by submitting that the assessment framed is invalid and not sustainable as the notice issued u/s.143(2) of the Act was in violation to the CBDT Instruction f. No. 225/157/2017/ITA-II dated 23.06.2017 and therefore the notice issued u/s. 143(2) was not valid as per Provision of Act.
Ld. Counsel of the assessee submitted that the above additional ground is legal issue which goes to the root of the issue and, therefore, the assessee is free to raise the issue in any appellate proceedings. Ld. AR relied on the decision of the Hon’ble Supreme Court in the case of National Thermal Power Co. Ltd. Vs. CIT, reported in [1998] 229 ITR 383(SC) in defense of his arguments. Ld. Sr. DR, on the other hand, opposed the additional ground at this stage on the ground that that was not raised before any of the authorities below.
After considering the rival contentions and looking to the facts and circumstances of the case, we find that the issue raised by the assessee is purely a legal issue which goes to the root of the matter. We further find that no further verification of facts is required or any additional facts are required to be brought on records whatsoever. Consequently, we admit the additional ground filed by the assessee before us and we proceed to decide the appeal of the assessee on the above legal ground.
7. We note that the additional ground raised by the assessee is with regard to issuance of notice u/s.143(2) of the Act on 24.09.2018, which was in violation of CBDT Instruction f.No.225/157/2017/ITA-II dated 23.06.2017. The ld. AR also placed before us the above instruction issued by the Government of India, Ministry of Finance, Department of Revenue, wherein it has been provided that w.e.f. 23.06.2017, the notice u/s.143(2) of the Act to be issued in any of the three following forms :- Limited Scrutiny (Computer Aided Scrutiny Selection Complete Scrutiny (Computer Aided Scrutiny Selection) Compulsory Manual Scrutiny
8. The ld. AR submitted that the notice is not bearing to any of the above forms prescribed by the CBDT in the above instruction, therefore, notice issued u/s.143(2) of the Act is bad in law for which the assessment is not sustainable. Ld. AR in defense of his arguments, relied on following series of decisions, wherein similar issue has been decided in favour of the assessee :-
1. Lavanya Estates Pvt. Ltd. vs. ITO ITA No.: 342/PAT/2023 PATNA ITAT
2. Shri Rudraprasad Mondal vs. DCIT ITA No.: 702/K/2024 [08.10.2024] Kolkata ITAT
3. Dev Milk Foods Pvt. Ltd. vs. Addl. CIT Spl. R-3,New Delhi Delhi ITAT [ITA No.: 6767/Del/2019] dt. 12.06.2023
4. Sukhdham Infrastructure LLP vs. ITO [ITA No.: 2611/Kol/2019] dt. 23.02.2023 Kolkata ITAT
9. Since the facts and issue involved in the present case are identical to the decisions as relied on by the ld. AR above, we are inclined to hold that notice issued u/s.143(2) of the Act is invalid and, therefore, the assessment framed u/s.143(3) of the Act is also invalid and accordingly