M/S. WEEDO VENTURES PVT. LTD. (EARLIER KNOWN AS M/S. EQUAL PROJECTS PVT. LTD.),KOLKATA vs. I.T. O., WARD, 9(2), KOLKATA

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA ‘B’ BENCH, KOLKATA (Before Sri J. Sudhakar Reddy, Hon’ble Accountant Member & Sri Aby T. Varkey, Hon’ble Judicial Member) ITA No. 2129/Kol/2019 Assessment Year: 2012-13 M/s. Weedo Ventures Pvt. Ltd......……………………..................................……………..…….............Appellant [Earlier known as M/s. Equal Projects Pvt. Ltd.] Property No. 11 Block-A, Maharana Pratap Enclave Pitampura Delhi - 110034 [PAN : AACCE 4580 C]

Vs. Income Tax Officer, Ward-9(2), Kolkata..................….................................................…......Respondent ITA No. 2535/Kol/2019 Assessment Year:- 2011-12 M/s. Weedo Ventures Pvt. Ltd......……………………..................................……………..…….............Appellant [Earlier known as M/s. Equal Projects Pvt. Ltd.] Property No. 11 Block-A, Maharana Pratap Enclave Pitampura Delhi - 110034 [PAN : AACCE 4580 C]

Vs. Commissioner of Income Tax (Appeals)-3, Kolkata..................................................…......Respondent Appearances by: Shri Miraj D. Shah, A/R, appeared on behalf of the assessee. Shri Imokaba Jamir, CIT, D/R, appearing on behalf of the Revenue. Date of concluding the hearing : March 31st, 2021 Date of pronouncing the order : April 16th, 2021 ORDER Per J. Sudhakar Reddy, AM :- Both these appeals filed by the assessee are directed against the order of the Learned Commissioner of Income Tax (Appeals) - 3, (hereinafter the “ld. CIT(A)”), passed u/s. 250 of the Income Tax Act, 1961 (the ‘Act’), dt. 29/07/2019, for the Assessment Year 2011-12 & 2012-13. As the issues arising in both these appeals are common, for the sake of convenience, they are heard together and disposed off by way of this common order. First we take up the assessee’s appeal for the Assessment Year 2012-13 in ITA No. 2129/Kol/2019

2 ITA No. 2535/Kol/2019 Assessment Year:- 2011-12 ITA No. 2129/Kol/2019 Assessment Year: 2012-13 M/s. Weedo Ventures Pvt. Ltd. M/s. Weedo Ventures Pvt. Ltd. 2. The assessee is a private limited company engaged in The assessee is a private limited company engaged in the business of investments the business of investments in shares & securities during the financial year 2010 in shares & securities during the financial year 2010-11, corresponding Assessment Year 11, corresponding Assessment Year 2011-12. During the Financial Year ended on 31 12. During the Financial Year ended on 31st March, 2011 (Assessment Year 2011 March, 2011 (Assessment Year 2011- 12) the company has not earned any exempt income. 12) the company has not earned any exempt income. During the course of scrutiny the course of scrutiny assessment proceedings, to a query from the Assessing Officer, the assessee submitted assessment proceedings, to a query from the Assessing Officer, the assessee submitted assessment proceedings, to a query from the Assessing Officer, the assessee submitted that the investment is unquoted equity shares are not divided yielding one but are held to he investment is unquoted equity shares are not divided yielding one but are held to he investment is unquoted equity shares are not divided yielding one but are held to earn appreciation in their value. The appreciation i earn appreciation in their value. The appreciation in unquoted equity shares is taxable quoted equity shares is taxable under the Income Tax Act. The company has not borrowed any fund under the Income Tax Act. The company has not borrowed any fund. T . Thus the question of interest on borrowings attributable to such investments does not arise. The Assessing interest on borrowings attributable to such investments does not arise. The Assessing interest on borrowings attributable to such investments does not arise. The Assessing Officer without assigning any reason, refused to acc Officer without assigning any reason, refused to accept the explanation of the assessee. e explanation of the assessee. The submission given by the assessee stated the rationale of its offer, based on facts and he submission given by the assessee stated the rationale of its offer, based on facts and he submission given by the assessee stated the rationale of its offer, based on facts and legal aspects. The Assessing Officer rejected the same on the ground that CBDT has legal aspects. The Assessing Officer rejected the same on the ground that CBDT has legal aspects. The Assessing Officer rejected the same on the ground that CBDT has already prescribed the manner of computation already prescribed the manner of computation in connection with the exempt income in connection with the exempt income vide circular no. 5/2014 read with vide circular no. 5/2014 read with section 14A read with rule 8D interalia interalia making an addition of Rs.1,46,785/-. 2.1. Aggrieved the assessee carried the matter in appeal before the ld. First Appellate Aggrieved the assessee carried the matter in appeal before the ld. First Appellate Aggrieved the assessee carried the matter in appeal before the ld. First Appellate Authority. The ld. CIT(A) enhanced the assessment by invoking his powers u/s 251 of the CIT(A) enhanced the assessment by invoking his powers u/s 251 of the CIT(A) enhanced the assessment by invoking his powers u/s 251 of the Act. He directed the Assessing Officer to make an addition of Rs.17,18,00,000/ Act. He directed the Assessing Officer to make an addition of Rs.17,18,00,000/ Act. He directed the Assessing Officer to make an addition of Rs.17,18,00,000/- u/s. 68 of the Act. 3. Further aggrieved, the assessee is in appeal before us on the following grounds: Further aggrieved, the assessee is in appeal before us on the following grounds: Further aggrieved, the assessee is in appeal before us on the following grounds:- “1) For that the Learned Commissioner of Income Tax Appeals erred in making an “1) For that the Learned Commissioner of Income Tax Appeals erred in making an “1) For that the Learned Commissioner of Income Tax Appeals erred in making an addition of Rs.17,18,00,000/ addition of Rs.17,18,00,000/- by enhancement of income. The addition is uncalled for by enhancement of income. The addition is uncalled for and hence the same be deleted. and hence the same be deleted. 2) For that the Learned Commissioner of Income Tax Appeals th 2) For that the Learned Commissioner of Income Tax Appeals the power enhancement e power enhancement of income was not applicable in the facts of the case and hence the same be reversed of income was not applicable in the facts of the case and hence the same be reversed of income was not applicable in the facts of the case and hence the same be reversed and the addition made be deleted. and the addition made be deleted. 3) For that the Learned Commissioner of Income Tax Appeals did not examine the 3) For that the Learned Commissioner of Income Tax Appeals did not examine the 3) For that the Learned Commissioner of Income Tax Appeals did not examine the assessment records and examine the do assessment records and examine the documents relating to share application and cuments relating to share application and hence even on merits the addition of Rs.17,18,00,000/ hence even on merits the addition of Rs.17,18,00,000/- was uncalled for and hence the was uncalled for and hence the same be deleted. 4) For that in the facts and circumstances of the case the addition u/ s 68 of the IT Act 4) For that in the facts and circumstances of the case the addition u/ s 68 of the IT Act 4) For that in the facts and circumstances of the case the addition u/ s 68 of the IT Act 1961 ofRs.17,18,00,000 was uncalled for and hence the same be deleted. 00 was uncalled for and hence the same be deleted. 00 was uncalled for and hence the same be deleted.

3 ITA No. 2535/Kol/2019 Assessment Year:- 2011-12 ITA No. 2129/Kol/2019 Assessment Year: 2012-13 M/s. Weedo Ventures Pvt. Ltd. M/s. Weedo Ventures Pvt. Ltd. 5) The appellant craves leave to produce additional evidences in terms of Rule 29 of 5) The appellant craves leave to produce additional evidences in terms of Rule 29 of 5) The appellant craves leave to produce additional evidences in terms of Rule 29 of the Income Tax (Appellate Tribunal) Rules 1963. the Income Tax (Appellate Tribunal) Rules 1963. 6) For that in the facts and circumstances of the case the appellate o 6) For that in the facts and circumstances of the case the appellate order passed by the rder passed by the Learned Commissioner of Income Tax Appeals was without giving adequate Learned Commissioner of Income Tax Appeals was without giving adequate Learned Commissioner of Income Tax Appeals was without giving adequate opportunity of hearing to the assessee and therefore in violation of principles of opportunity of hearing to the assessee and therefore in violation of principles of opportunity of hearing to the assessee and therefore in violation of principles of natural justice hence is bad in law and be set aside. natural justice hence is bad in law and be set aside. 7) The appellant craves leav 7) The appellant craves leave to press new, additional grounds of appeal or modify, e to press new, additional grounds of appeal or modify, withdraw any of the above grounds at the time of hearing of the appeal.” withdraw any of the above grounds at the time of hearing of the appeal.” withdraw any of the above grounds at the time of hearing of the appeal.”

4.2. On the additional grounds, the ld. Counsel for the assessee submitted that the On the additional grounds, the ld. Counsel for the assessee submitted that the On the additional grounds, the ld. Counsel for the assessee submitted that the assessee is challenging the jurisdiction of the Assessing Officer to issue notice u/s 143(2) assessee is challenging the jurisdiction of the Assessing Officer to issue notice u/s 143(2) assessee is challenging the jurisdiction of the Assessing Officer to issue notice u/s 143(2) of the Act and alternatively, the jurisdiction of the Assessing Officer, who has com of the Act and alternatively, the jurisdiction of the Assessing Officer, who has com of the Act and alternatively, the jurisdiction of the Assessing Officer, who has completed the assessment u/s. 143(3) of the Act. He submitted that the jurisdictional issues go to the the assessment u/s. 143(3) of the Act. He submitted that the jurisdictional issues go to the the assessment u/s. 143(3) of the Act. He submitted that the jurisdictional issues go to the root of the matter and as no facts need be enquired into, the legal grounds may be root of the matter and as no facts need be enquired into, the legal grounds may be root of the matter and as no facts need be enquired into, the legal grounds may be admitted by the ITAT. For this proposition, he relied on the judgment of admitted by the ITAT. For this proposition, he relied on the judgment of admitted by the ITAT. For this proposition, he relied on the judgment of the Hon’ble Supreme Court in the case of Supreme Court in the case of NTPC vs. CIT reported as 229 ITR 383.(SC) (SC) 5.1. The ld. D/R, could not controvert these submissions of the assessee. Hence, we The ld. D/R, could not controvert these submissions of the assessee. Hence, we The ld. D/R, could not controvert these submissions of the assessee. Hence, we admit these additional grounds of appeal. admit these additional grounds of appeal. 6. The ld. Counsel for the assessee, Shri Miraj The ld. Counsel for the assessee, Shri Miraj D. Shah, submitted that the notice u/s D. Shah, submitted that the notice u/s 143(2) & 142(1) of the Act was issued by the ITO, Ward 143(2) & 142(1) of the Act was issued by the ITO, Ward-5(3), Kolkata and the assessee 5(3), Kolkata and the assessee company, in response to the notice, submitted memorandum and article of association of company, in response to the notice, submitted memorandum and article of association of company, in response to the notice, submitted memorandum and article of association of the company, copy of certificate of incorpo the company, copy of certificate of incorporation dated 21/07/2010, copy of audited ration dated 21/07/2010, copy of audited

4 ITA No. 2535/Kol/2019 Assessment Year:- 2011-12 ITA No. 2129/Kol/2019 Assessment Year: 2012-13 M/s. Weedo Ventures Pvt. Ltd. M/s. Weedo Ventures Pvt. Ltd. accounts and details regarding source of capital introduced in the office of the ITO Ward accounts and details regarding source of capital introduced in the office of the ITO Ward accounts and details regarding source of capital introduced in the office of the ITO Ward 5(3) on 14/01/2013. The A/R of the assessee also appeared before the ITO on 5(3) on 14/01/2013. The A/R of the assessee also appeared before the ITO on 5(3) on 14/01/2013. The A/R of the assessee also appeared before the ITO on 21/02/2014, explaining the return of income and a 21/02/2014, explaining the return of income and also produced the books of accounts lso produced the books of accounts alongwith bank statement and the same were examined. He submits that ITO, Ward alongwith bank statement and the same were examined. He submits that ITO, Ward alongwith bank statement and the same were examined. He submits that ITO, Ward-5(3), Kolkata, did not have jurisdiction over the assessee. Kolkata, did not have jurisdiction over the assessee. Thus, consequently the assessme onsequently the assessment was completed by the ITO, Ward was completed by the ITO, Ward-9(2), Kolkata u/s 143(3) of the Act on 03/03/2014. 143(3) of the Act on 03/03/2014. Alternatively, he submitted that the Alternatively, he submitted that the Assessing Officer ITO Ward-9(2), Kolkata, 9(2), Kolkata, completed the assessment without issuing notice u/s 143(2) of the Act, which is bad in law. He the assessment without issuing notice u/s 143(2) of the Act, which is bad in law. He the assessment without issuing notice u/s 143(2) of the Act, which is bad in law. He prayed for relied. 7. The ld. D/R, Shri Imokaba The ld. D/R, Shri Imokaba Jamir, could not factually controvert the submissions of Jamir, could not factually controvert the submissions of the ld. Counsel for the assessee that the the ld. Counsel for the assessee that the notice u/s 143(2) & 142(1) of the Act, was issued notice u/s 143(2) & 142(1) of the Act, was issued by ITO, Ward-5(3), Kolkata, who did not have jurisdiction over the assessee company and 5(3), Kolkata, who did not have jurisdiction over the assessee company and 5(3), Kolkata, who did not have jurisdiction over the assessee company and that the assessment was completed by the ITO, Ward t was completed by the ITO, Ward-9(2), Kolkata, without issuing 9(2), Kolkata, without issuing notice u/s 143(2) of the Act. notice u/s 143(2) of the Act. 8. We have heard rival contentions. On careful consideration of the facts and We have heard rival contentions. On careful consideration of the facts and We have heard rival contentions. On careful consideration of the facts and circumstances of the case, perusal of the papers on record, orders of the authoritie circumstances of the case, perusal of the papers on record, orders of the authoritie circumstances of the case, perusal of the papers on record, orders of the authorities below as well as case law cited, we hold as follows: below as well as case law cited, we hold as follows:- 9. The issue of jurisdiction of the assessee goes to the root of the matter. The issue of jurisdiction of the assessee goes to the root of the matter. The issue of jurisdiction of the assessee goes to the root of the matter. It does not require any investigation into facts. Thus, we admit these additional grounds. require any investigation into facts. Thus, we admit these additional grounds. require any investigation into facts. Thus, we admit these additional grounds. The undisputed fact in this cas The undisputed fact in this case is that, the notice u/s 143(2) of the Act was issued e is that, the notice u/s 143(2) of the Act was issued by the ITO, Ward-5(3), Kolkata. 5(3), Kolkata. The ITO, Ward – 9(2), Kolkata, who completed the 9(2), Kolkata, who completed the assessment in this case has not issued the mandatory notice u/s 143(2) of the Act. assessment in this case has not issued the mandatory notice u/s 143(2) of the Act. assessment in this case has not issued the mandatory notice u/s 143(2) of the Act. The ITAT Kolkata Bench of the Tribuna ITAT Kolkata Bench of the Tribunal in the case of Hillman Hosiery Mills Pvt. Ltd. vs. DCIT in Hillman Hosiery Mills Pvt. Ltd. vs. DCIT in ITA No. 2634/Kol/2019, order dt. 12/01/2021, ITA No. 2634/Kol/2019, order dt. 12/01/2021, under similar circumstances, held as under similar circumstances, held as follows:- “10. In this case, the ITO Ward this case, the ITO Ward-3(3), Kolkata, issued notice u/s 143(2) of the Act on 3(3), Kolkata, issued notice u/s 143(2) of the Act on 04/09/2014. In reply, on 22/09/2014, the assessee wrote to the ITO, Ward 04/09/2014. In reply, on 22/09/2014, the assessee wrote to the ITO, Ward 04/09/2014. In reply, on 22/09/2014, the assessee wrote to the ITO, Ward-3(3), Kolkata, stating that he has no jurisdiction over the assessee. Thereafter on 31/07/2015, the DCIT stating that he has no jurisdiction over the assessee. Thereafter on 31/07/2015, the DCIT stating that he has no jurisdiction over the assessee. Thereafter on 31/07/2015, the DCIT, Circle-11(1), Kolkata, had issued notice u/s 142(1) of the Act to the assessee. The DCIT, 11(1), Kolkata, had issued notice u/s 142(1) of the Act to the assessee. The DCIT, 11(1), Kolkata, had issued notice u/s 142(1) of the Act to the assessee. The DCIT, Circle-11(1), Kolkata, completed assessment u/s 143(3) of the Act on 14/03/2016. The 11(1), Kolkata, completed assessment u/s 143(3) of the Act on 14/03/2016. The 11(1), Kolkata, completed assessment u/s 143(3) of the Act on 14/03/2016. The issue is whether an assessment order passed by DCIT, Circle issue is whether an assessment order passed by DCIT, Circle-11(1), Kolkata, is 11(1), Kolkata, is valid as

ITA No. 2535/Kol/2019 Assessment Year:- 2011-12 ITA No. 2129/Kol/2019 Assessment Year: 2012-13 M/s. Weedo Ventures Pvt. Ltd. M/s. Weedo Ventures Pvt. Ltd. admittedly, he did not issue a notice u/s 143(2) of the Act, to the assessee. This issue is no admittedly, he did not issue a notice u/s 143(2) of the Act, to the assessee. This issue is no admittedly, he did not issue a notice u/s 143(2) of the Act, to the assessee. This issue is no more res-integra. This Bench of the Tribunal in the case of Soma Roy vs. ACIT in ITA No. integra. This Bench of the Tribunal in the case of Soma Roy vs. ACIT in ITA No. integra. This Bench of the Tribunal in the case of Soma Roy vs. ACIT in ITA No. 462/Kol/2019; Assessment Year 2015 462/Kol/2019; Assessment Year 2015-16, order dt. 8th January, 2020, under identical 020, under identical circumstances, held as under: circumstances, held as under:- “5. After hearing rival contentions, I admit this additional ground as it is a After hearing rival contentions, I admit this additional ground as it is a After hearing rival contentions, I admit this additional ground as it is a legal ground, raising a jurisdictional issue and does not require any investigation legal ground, raising a jurisdictional issue and does not require any investigation legal ground, raising a jurisdictional issue and does not require any investigation into the facts. The ld. Counsel for the a into the facts. The ld. Counsel for the assessee submitted that as per Board ssessee submitted that as per Board Instruction No. 1/2011 [F. No. 187/12/2010 Instruction No. 1/2011 [F. No. 187/12/2010-IT(A-I)], dt. 31/01/2011, the I)], dt. 31/01/2011, the jurisdiction of the assessee is with the Assistant Commissioner of Income Tax, jurisdiction of the assessee is with the Assistant Commissioner of Income Tax, jurisdiction of the assessee is with the Assistant Commissioner of Income Tax, Circle-1, Durgapur, as the assessee is a non 1, Durgapur, as the assessee is a non-corporate assessee and corporate assessee and the income returned is above Rs.15,00,000/ returned is above Rs.15,00,000/- and whereas, the statutory notice u/s 143(2) of and whereas, the statutory notice u/s 143(2) of the Act, was issued on 29/09/2016, by the Income Tax Officer, ward the Act, was issued on 29/09/2016, by the Income Tax Officer, ward the Act, was issued on 29/09/2016, by the Income Tax Officer, ward-1(1), Durgapur, who had no jurisdiction of the case. He submitted that the assessment Durgapur, who had no jurisdiction of the case. He submitted that the assessment Durgapur, who had no jurisdiction of the case. He submitted that the assessment order was passed by the ACIT, Circle assed by the ACIT, Circle-1(1), Durgapur, who had the jurisdiction over 1(1), Durgapur, who had the jurisdiction over the assessee, but he had not issued the notice u/s 143(2) of the Act, within the the assessee, but he had not issued the notice u/s 143(2) of the Act, within the the assessee, but he had not issued the notice u/s 143(2) of the Act, within the statutory period prescribed under the Act. Thus, he submits that the assessment is statutory period prescribed under the Act. Thus, he submits that the assessment is statutory period prescribed under the Act. Thus, he submits that the assessment is bad in law. 5.1. On merits, he rebutted the findings of the lower authorities. The ld. Counsel merits, he rebutted the findings of the lower authorities. The ld. Counsel merits, he rebutted the findings of the lower authorities. The ld. Counsel for the assessee relied on certain case for the assessee relied on certain case-law, which I would be referring to as and law, which I would be referring to as and when necessary. 6. The ld. D/R, on the other hand, submitted that the concurrent jurisdiction The ld. D/R, on the other hand, submitted that the concurrent jurisdiction The ld. D/R, on the other hand, submitted that the concurrent jurisdiction vests with the ITO as well as the ACIT and hence the assessment cannot be annulled s with the ITO as well as the ACIT and hence the assessment cannot be annulled s with the ITO as well as the ACIT and hence the assessment cannot be annulled simply because the statutory notice u/s 143(2) of the Act, was issued by the ITO and simply because the statutory notice u/s 143(2) of the Act, was issued by the ITO and simply because the statutory notice u/s 143(2) of the Act, was issued by the ITO and the assessment was completed by the ACIT. He further submitted that the assessee the assessment was completed by the ACIT. He further submitted that the assessee the assessment was completed by the ACIT. He further submitted that the assessee did not object to the issue of notice before the jurisdictional Assessing Officer and ect to the issue of notice before the jurisdictional Assessing Officer and ect to the issue of notice before the jurisdictional Assessing Officer and even otherwise, Section 292BB of the Act, comes into play and the assessment even otherwise, Section 292BB of the Act, comes into play and the assessment even otherwise, Section 292BB of the Act, comes into play and the assessment cannot be annulled. On merits, he relied on the orders of the lower authorities. cannot be annulled. On merits, he relied on the orders of the lower authorities. cannot be annulled. On merits, he relied on the orders of the lower authorities. 7. I have heard rival c I have heard rival contentions. On careful consideration of the facts and ontentions. On careful consideration of the facts and circumstances of the case, perusal of the papers on record, orders of the authorities circumstances of the case, perusal of the papers on record, orders of the authorities circumstances of the case, perusal of the papers on record, orders of the authorities below as well as case law cited, I hold as follows: below as well as case law cited, I hold as follows:- 8. I find that there is no dispute in the fact that the notice I find that there is no dispute in the fact that the notice u/s 143(2) of the u/s 143(2) of the Act dt. 29/09/2016 has been issued by the ITO, Wd Act dt. 29/09/2016 has been issued by the ITO, Wd-1(1), Durgapur. Later, the case 1(1), Durgapur. Later, the case was transferred to the jurisdiction of the ACIT on 11/08/2017. Thereafter, no was transferred to the jurisdiction of the ACIT on 11/08/2017. Thereafter, no was transferred to the jurisdiction of the ACIT on 11/08/2017. Thereafter, no notice u/s 143(2) of the Act was issued by the Assessing Officer having juris notice u/s 143(2) of the Act was issued by the Assessing Officer having juris notice u/s 143(2) of the Act was issued by the Assessing Officer having jurisdiction of this case and who had completed the assessment on 26/12/2017 i.e., ACIT, of this case and who had completed the assessment on 26/12/2017 i.e., ACIT, of this case and who had completed the assessment on 26/12/2017 i.e., ACIT, Circle-1(1), Durgapur. Under these circumstances, the question is whether the 1(1), Durgapur. Under these circumstances, the question is whether the 1(1), Durgapur. Under these circumstances, the question is whether the assessment is bad in law for want of issual of notice u/s 143(2) of the Act. assessment is bad in law for want of issual of notice u/s 143(2) of the Act. assessment is bad in law for want of issual of notice u/s 143(2) of the Act. 9. This Bench o This Bench of the Tribunal in the case of Shri Sukumar Ch. Sahoo vs. ACIT f the Tribunal in the case of Shri Sukumar Ch. Sahoo vs. ACIT in ITA No. 2073/Kol/2016 order dt. 27.09.2017, held as follows: in ITA No. 2073/Kol/2016 order dt. 27.09.2017, held as follows:- “5. From a perusal of the above Instruction of the CBDT it is evident that the “5. From a perusal of the above Instruction of the CBDT it is evident that the “5. From a perusal of the above Instruction of the CBDT it is evident that the pecuniary jurisdiction conferred by the CBDT on IT pecuniary jurisdiction conferred by the CBDT on ITOs is in respect to the 'non Os is in respect to the 'non corporate returns' filed where income declared is only upto Rs.15 lacs ; and the ITO corporate returns' filed where income declared is only upto Rs.15 lacs ; and the ITO corporate returns' filed where income declared is only upto Rs.15 lacs ; and the ITO doesn't have the jurisdiction to conduct assessment if it is above Rs 15 lakhs. Above doesn't have the jurisdiction to conduct assessment if it is above Rs 15 lakhs. Above doesn't have the jurisdiction to conduct assessment if it is above Rs 15 lakhs. Above Rs. 15 lacs income declared by a non Rs. 15 lacs income declared by a non- corporate person i.e. like assessee, the .e. like assessee, the pecuniary jurisdiction lies before AC/DC. In this case, admittedly, the assessee an pecuniary jurisdiction lies before AC/DC. In this case, admittedly, the assessee an pecuniary jurisdiction lies before AC/DC. In this case, admittedly, the assessee an individual (non corporate person) who undisputedly declared income of individual (non corporate person) who undisputedly declared income of individual (non corporate person) who undisputedly declared income of Rs.50,28,040/ Rs.50,28,040/- in his return of income cannot be assessed by the ITO as per the in his return of income cannot be assessed by the ITO as per the CBDT circular (supra). From a perusal of the assessment order, it reveals that the CBDT circular (supra). From a perusal of the assessment order, it reveals that the CBDT circular (supra). From a perusal of the assessment order, it reveals that the statutory notice u/s. 143(2) of the Act was issued by the then ITO, Ward statutory notice u/s. 143(2) of the Act was issued by the then ITO, Ward statutory notice u/s. 143(2) of the Act was issued by the then ITO, Ward-1, Haldia on 06.09.2013 and the same was served on the assessee on 19.09.2013 as noted by on 06.09.2013 and the same was served on the assessee on 19.09.2013 as noted by on 06.09.2013 and the same was served on the assessee on 19.09.2013 as noted by the AO. T the AO. The AO noted that since the returned income is more than Rs. 15 lacs the he AO noted that since the returned income is more than Rs. 15 lacs the case was transferred from the ITO, Ward case was transferred from the ITO, Ward-1, Haldia to ACIT, Circle-27 and the same 27 and the same was received by the office of the ACIT, Circle was received by the office of the ACIT, Circle-27, Haldia on 24.09.2014 and 27, Haldia on 24.09.2014 and immediately ACIT issued no immediately ACIT issued notice u/s. 142(1) of the Act on the same day. From the tice u/s. 142(1) of the Act on the same day. From the aforesaid facts the following facts emerged: aforesaid facts the following facts emerged:

ITA No. 2535/Kol/2019 Assessment Year:- 2011-12 ITA No. 2129/Kol/2019 Assessment Year: 2012-13 M/s. Weedo Ventures Pvt. Ltd. M/s. Weedo Ventures Pvt. Ltd. i) The assessee had filed return of income declaring Rs.50,28,040/ i) The assessee had filed return of income declaring Rs.50,28,040/- -. The ITO issued notice under notice under section 143(2) of the Act on 06.09.2013. ii) The ITO, Ward ii) The ITO, Ward-1, Haldia taking note that the income returned was above Rs. 15 1, Haldia taking note that the income returned was above Rs. 15 lacs transferred the case to ACIT, Circle lacs transferred the case to ACIT, Circle-27, Haldia on 24.09.2014. iii) On 24.09.2014 statutory notices for scrutiny were issued by ACIT, Circle iii) On 24.09.2014 statutory notices for scrutiny were issued by ACIT, Circle iii) On 24.09.2014 statutory notices for scrutiny were issued by ACIT, Circle-27, Haldia. 6. We note that the CBDT Instruction is dated 31.01.2011 and the assessee has filed 6. We note that the CBDT Instruction is dated 31.01.2011 and the assessee has filed 6. We note that the CBDT Instruction is dated 31.01.2011 and the assessee has filed the return of income on 29.03.2013 declaring total income of Rs.50,28,040/ the return of income on 29.03.2013 declaring total income of Rs.50,28,040/ the return of income on 29.03.2013 declaring total income of Rs.50,28,040/-. As per the CBDT Instruction the monetary limits in respect to an assessee who is an er the CBDT Instruction the monetary limits in respect to an assessee who is an er the CBDT Instruction the monetary limits in respect to an assessee who is an individual which falls under the category of 'non corporate returns' the ITO's individual which falls under the category of 'non corporate returns' the ITO's individual which falls under the category of 'non corporate returns' the ITO's increased monetary limit was upto Rs.15 lacs; and if the returned income is above increased monetary limit was upto Rs.15 lacs; and if the returned income is above increased monetary limit was upto Rs.15 lacs; and if the returned income is above Rs. 15 lacs it Rs. 15 lacs it was the AC/DC. So, since the returned income by assessee an was the AC/DC. So, since the returned income by assessee an individual is above Rs.15 lakh, then the jurisdiction to assess the assessee lies only individual is above Rs.15 lakh, then the jurisdiction to assess the assessee lies only individual is above Rs.15 lakh, then the jurisdiction to assess the assessee lies only by AC/DC and not ITO. So, therefore, only the AC/DC had the jurisdiction to assess by AC/DC and not ITO. So, therefore, only the AC/DC had the jurisdiction to assess by AC/DC and not ITO. So, therefore, only the AC/DC had the jurisdiction to assess the assessee. It is settle the assessee. It is settled law that serving of notice u/s. 143(2) of the Act is a sine d law that serving of notice u/s. 143(2) of the Act is a sine qua non for an assessment to be made u/s. 143(3) of the Act. In this case, notice qua non for an assessment to be made u/s. 143(3) of the Act. In this case, notice qua non for an assessment to be made u/s. 143(3) of the Act. In this case, notice u/s. 143(2) of the Act was issued on 06.09.2013 by ITO, Ward u/s. 143(2) of the Act was issued on 06.09.2013 by ITO, Ward-1, Haldia when he 1, Haldia when he did not have the pecuniary jurisd did not have the pecuniary jurisdiction to assume jurisdiction and issue notice. iction to assume jurisdiction and issue notice. Admittedly, when the ITO realized that he did not had the pecuniary jurisdiction to Admittedly, when the ITO realized that he did not had the pecuniary jurisdiction to Admittedly, when the ITO realized that he did not had the pecuniary jurisdiction to issue notice he duly transferred the file to the ACIT, Circle issue notice he duly transferred the file to the ACIT, Circle-27, Haldia on 24.09. 27, Haldia on 24.09. 2014 when the ACIT issued statutory notic 2014 when the ACIT issued statutory notice which was beyond the time limit e which was beyond the time limit prescribed for issuance of notice u/s. 143(2) of the Act. We note that the ACIT by prescribed for issuance of notice u/s. 143(2) of the Act. We note that the ACIT by prescribed for issuance of notice u/s. 143(2) of the Act. We note that the ACIT by assuming the jurisdiction after the time prescribed for issuance of notice u/s. assuming the jurisdiction after the time prescribed for issuance of notice u/s. assuming the jurisdiction after the time prescribed for issuance of notice u/s. 143(2) of the Act notice became qoarum non judice after the 143(2) of the Act notice became qoarum non judice after the limitation prescribed limitation prescribed by the statute was crossed by him. Therefore, the issuance of notice by the ACIT, by the statute was crossed by him. Therefore, the issuance of notice by the ACIT, by the statute was crossed by him. Therefore, the issuance of notice by the ACIT, Circle-27, Haldia after the limitation period for issuance of statutory notice u/s. 27, Haldia after the limitation period for issuance of statutory notice u/s. 27, Haldia after the limitation period for issuance of statutory notice u/s. 143(2) of the Act has set in, goes to the root of the case and make 143(2) of the Act has set in, goes to the root of the case and makes the notice bad in s the notice bad in the eyes of law and consequential assessment order passed u/s. 143(3) of the Act is the eyes of law and consequential assessment order passed u/s. 143(3) of the Act is the eyes of law and consequential assessment order passed u/s. 143(3) of the Act is not valid in the eyes of law and, therefore, is null and void in the eyes of law. not valid in the eyes of law and, therefore, is null and void in the eyes of law. not valid in the eyes of law and, therefore, is null and void in the eyes of law. Therefore, the legal issue raised by the assessee is allowed. Since we Therefore, the legal issue raised by the assessee is allowed. Since we Therefore, the legal issue raised by the assessee is allowed. Since we have quashed the assessment and the appeal of assessee is allowed on the legal issue, the other the assessment and the appeal of assessee is allowed on the legal issue, the other the assessment and the appeal of assessee is allowed on the legal issue, the other grounds raised by the assessee need not to be adjudicated because it is only grounds raised by the assessee need not to be adjudicated because it is only grounds raised by the assessee need not to be adjudicated because it is only academic. Therefore, the additional ground raised by the assessee is allowed. academic. Therefore, the additional ground raised by the assessee is allowed. academic. Therefore, the additional ground raised by the assessee is allowed. 7. In the result, appeal of assessee is allowed. In the result, appeal of assessee is allowed. 9.1. This Bench of the Tribunal in the case of Krishnendu Chowdhury vs. ITO This Bench of the Tribunal in the case of Krishnendu Chowdhury vs. ITO This Bench of the Tribunal in the case of Krishnendu Chowdhury vs. ITO reported in [2017] 78 taxmann.com 89 (Kolkata reported in [2017] 78 taxmann.com 89 (Kolkata-Trib.) held as follows: Trib.) held as follows:- “Return of income of assessee was Rs. 12 lakhs Return of income of assessee was Rs. 12 lakhs - As per CBDT instruction, As per CBDT instruction, jurisdiction for scrutiny assessment vested in Income jurisdiction for scrutiny assessment vested in Income-tax Officer and notice tax Officer and notice under section 143(2) must be issued by Income under section 143(2) must be issued by Income-tax Officer, Ward tax Officer, Ward-I, Haldia and none other and none other - But, notice was issued by Asstt. Commissioner, Circle Haldia But, notice was issued by Asstt. Commissioner, Circle Haldia much after CBDT's instruction and knowing fully well that he had no much after CBDT's instruction and knowing fully well that he had no much after CBDT's instruction and knowing fully well that he had no jurisdiction over assessee jurisdiction over assessee - Whether, therefore, notice issued by Asstt. Whether, therefore, notice issued by Asstt. Commissioner was invalid and consequently assessment framed by Income Commissioner was invalid and consequently assessment framed by Income Commissioner was invalid and consequently assessment framed by Income- tax Officers becomes void since issue of not tax Officers becomes void since issue of notice under section 143(2) was not ice under section 143(2) was not tax Officers as specified in CBDT instruction No. 1/2011.” done by Income done by Income-tax Officers as specified in CBDT instruction No. 1/2011.” 9.2. The Hon’ble High Court of Calcutta in the case of West Bengal State The Hon’ble High Court of Calcutta in the case of West Bengal State The Hon’ble High Court of Calcutta in the case of West Bengal State Electricity Board vs. Deputy Commissioner of Income Tax, Special Range Electricity Board vs. Deputy Commissioner of Income Tax, Special Range Electricity Board vs. Deputy Commissioner of Income Tax, Special Range – I, reported in [2005] 278 ITR 218 (Cal.) has held as follows: reported in [2005] 278 ITR 218 (Cal.) has held as follows:- “Section 254 of the Income Section 254 of the Income-tax Act, 1961 - Appellate Tribunal - Powers of Powers of - Assessment years 1983 years 1983-84 to 1987-88 - Whether a question of law arising out of facts found by Whether a question of law arising out of facts found by authorities and which wen authorities and which went to root of jurisdiction can be raised for first time before t to root of jurisdiction can be raised for first time before Tribunal - - Held, yesWhether jurisdiction of Assessing Authority is not dependent on Held, yesWhether jurisdiction of Assessing Authority is not dependent on date of accrual of cause of action but on date when it is initiated date of accrual of cause of action but on date when it is initiated - Held, yes Held, yes - Whether once a particular ju once a particular jurisdiction is created, same must be prospective and cannot be risdiction is created, same must be prospective and cannot be retrospective and it has to be interpreted having regard to manner in which it has retrospective and it has to be interpreted having regard to manner in which it has retrospective and it has to be interpreted having regard to manner in which it has been sought to be created - Held, yes – Assessee” been sought to be created

ITA No. 2535/Kol/2019 Assessment Year:- 2011-12 ITA No. 2129/Kol/2019 Assessment Year: 2012-13 M/s. Weedo Ventures Pvt. Ltd. M/s. Weedo Ventures Pvt. Ltd. 9.3. The Hon’ble Supreme Court in the case of CIT vs. Laxman The Hon’ble Supreme Court in the case of CIT vs. Laxman Das Khandelwal Das Khandelwal [2019] 108 taxmann.com 183 (SC), held as follows: [2019] 108 taxmann.com 183 (SC), held as follows:- “7. A closer look at Section 292BB shows that if the assessee has participated in the A closer look at Section 292BB shows that if the assessee has participated in the A closer look at Section 292BB shows that if the assessee has participated in the proceedings it shall be deemed that any notice which is required to be served upon was duly proceedings it shall be deemed that any notice which is required to be served upon was duly proceedings it shall be deemed that any notice which is required to be served upon was duly served and served and the assessee would be precluded from taking any objections that the notice was the assessee would be precluded from taking any objections that the notice was (a) not served upon him; or (b) not served upon him in time; or (c) served upon him in an (a) not served upon him; or (b) not served upon him in time; or (c) served upon him in an (a) not served upon him; or (b) not served upon him in time; or (c) served upon him in an improper manner. According to Mr. Mahabir Singh, learned Senior Advocate, since the improper manner. According to Mr. Mahabir Singh, learned Senior Advocate, since the improper manner. According to Mr. Mahabir Singh, learned Senior Advocate, since the Respondent had participated in the proceedings, the provisions of Section 292BB would be a pondent had participated in the proceedings, the provisions of Section 292BB would be a pondent had participated in the proceedings, the provisions of Section 292BB would be a complete answer. complete answer. On the other hand, Mr. Ankit Vijaywargia, learned Advocate, appearing for the Respondent On the other hand, Mr. Ankit Vijaywargia, learned Advocate, appearing for the Respondent On the other hand, Mr. Ankit Vijaywargia, learned Advocate, appearing for the Respondent submitted that the notice under Section 143(2) of the Act was submitted that the notice under Section 143(2) of the Act was never issued which was evident never issued which was evident from the orders passed on record as well as the stand taken by the Appellant in the memo of from the orders passed on record as well as the stand taken by the Appellant in the memo of from the orders passed on record as well as the stand taken by the Appellant in the memo of appeal. It was further submitted that issuance of notice under Section 143(2) of the Act being appeal. It was further submitted that issuance of notice under Section 143(2) of the Act being appeal. It was further submitted that issuance of notice under Section 143(2) of the Act being prerequisite, in the absence of such n prerequisite, in the absence of such notice, the entire proceedings would be invalid. otice, the entire proceedings would be invalid. 8. The law on the point as regards applicability of the requirement of notice under Section The law on the point as regards applicability of the requirement of notice under Section The law on the point as regards applicability of the requirement of notice under Section 143(2) of the Act is quite clear from the decision in Hotel Blue Moon's case (supra). The issue 143(2) of the Act is quite clear from the decision in Hotel Blue Moon's case (supra). The issue 143(2) of the Act is quite clear from the decision in Hotel Blue Moon's case (supra). The issue that however needs to be considered is the impact of Section 292BB of that however needs to be considered is the impact of Section 292BB of the Act. the Act. 9. According to Section 292BB of the Act, if the assessee had participated in the proceedings, According to Section 292BB of the Act, if the assessee had participated in the proceedings, According to Section 292BB of the Act, if the assessee had participated in the proceedings, by way of legal fiction, notice would be deemed to be valid even if there be infractions as by way of legal fiction, notice would be deemed to be valid even if there be infractions as by way of legal fiction, notice would be deemed to be valid even if there be infractions as detailed in said Section. The scope of the provision is to m detailed in said Section. The scope of the provision is to make service of notice having certain ake service of notice having certain infirmities to be proper and valid if there was requisite participation on part of the assessee. infirmities to be proper and valid if there was requisite participation on part of the assessee. infirmities to be proper and valid if there was requisite participation on part of the assessee. It is, however, to be noted that the Section does not save complete absence of notice. For It is, however, to be noted that the Section does not save complete absence of notice. For It is, however, to be noted that the Section does not save complete absence of notice. For Section 292BB to apply, the not Section 292BB to apply, the notice must have emanated from the department. It is only the ice must have emanated from the department. It is only the infirmities in the manner of service of notice that the Section seeks to cure. The Section is not infirmities in the manner of service of notice that the Section seeks to cure. The Section is not infirmities in the manner of service of notice that the Section seeks to cure. The Section is not intended to cure complete absence of notice itself.” intended to cure complete absence of notice itself.” 10. Respectfully following the propositions of Respectfully following the propositions of law laid down in all these case law laid down in all these case- law and applying the same to the facts of the case, we hold that the assessment law and applying the same to the facts of the case, we hold that the assessment law and applying the same to the facts of the case, we hold that the assessment order is bad in law for the reason that the Assessing Officer having jurisdiction over order is bad in law for the reason that the Assessing Officer having jurisdiction over order is bad in law for the reason that the Assessing Officer having jurisdiction over the assessee, has not issued a notice u/s 143(2) of the the assessee, has not issued a notice u/s 143(2) of the Act as required by the statute. Act as required by the statute. Notice issue by the officer having no jurisdiction of the assessee is null and void. Notice issue by the officer having no jurisdiction of the assessee is null and void. Notice issue by the officer having no jurisdiction of the assessee is null and void. When a notice is issued by an officer having no jurisdiction, Section 292BB of the When a notice is issued by an officer having no jurisdiction, Section 292BB of the When a notice is issued by an officer having no jurisdiction, Section 292BB of the Act, does not comes into play. Coming to the argument of Act, does not comes into play. Coming to the argument of the ld. D/R that objection the ld. D/R that objection u/s 124(3) of the Act has to be taken by the assessee on rectifying notice u/s 143(2) u/s 124(3) of the Act has to be taken by the assessee on rectifying notice u/s 143(2) u/s 124(3) of the Act has to be taken by the assessee on rectifying notice u/s 143(2) of the Act from a non of the Act from a non-jurisdictional assessing officer, I am of the view that I need jurisdictional assessing officer, I am of the view that I need not adjudicate this issue, as I have held that non not adjudicate this issue, as I have held that non-issual of statutory notice/s 143(2) of statutory notice/s 143(2) of the Act by the jurisdictional Assessing Officer makes the assessment bad in law. of the Act by the jurisdictional Assessing Officer makes the assessment bad in law. of the Act by the jurisdictional Assessing Officer makes the assessment bad in law. Under these circumstances, we allow this appeal of the assessee.” Under these circumstances, we allow this appeal of the assessee.”

“9. In the light of the above discussion, particularly taking into consideration the law In the light of the above discussion, particularly taking into consideration the law In the light of the above discussion, particularly taking into consideration the law laid down by the Supreme Court in Hotel Blue Moon (supra), it is inescapable that the laid down by the Supreme Court in Hotel Blue Moon (supra), it is inescapable that the laid down by the Supreme Court in Hotel Blue Moon (supra), it is inescapable that the issuance of a notice under Section 143(2) of the Act is mandatory if the Assessing O issuance of a notice under Section 143(2) of the Act is mandatory if the Assessing O issuance of a notice under Section 143(2) of the Act is mandatory if the Assessing Officer seeks not to accept any part of the return as furnished by the assessee or make an seeks not to accept any part of the return as furnished by the assessee or make an seeks not to accept any part of the return as furnished by the assessee or make an

8 ITA No. 2535/Kol/2019 Assessment Year:- 2011-12 ITA No. 2129/Kol/2019 Assessment Year: 2012-13 M/s. Weedo Ventures Pvt. Ltd. M/s. Weedo Ventures Pvt. Ltd. assessment order contrary thereto and, even in course of reassessment proceedings, such assessment order contrary thereto and, even in course of reassessment proceedings, such assessment order contrary thereto and, even in course of reassessment proceedings, such notice cannot be dispensed with. notice cannot be dispensed with. 10. One of the arguments put forth on behalf One of the arguments put forth on behalf of the Revenue is that in course of of the Revenue is that in course of reassessment proceedings once a notice is issued under Section 148 of the Act, the reassessment proceedings once a notice is issued under Section 148 of the Act, the reassessment proceedings once a notice is issued under Section 148 of the Act, the assessee is made aware of what part of the income or on what count the assessee's assessee is made aware of what part of the income or on what count the assessee's assessee is made aware of what part of the income or on what count the assessee's income is perceived to have escaped attention. It is su income is perceived to have escaped attention. It is submitted that in such a scenario, the bmitted that in such a scenario, the requirement of a notice under Section 143(2) may be somewhat diluted, if not requirement of a notice under Section 143(2) may be somewhat diluted, if not requirement of a notice under Section 143(2) may be somewhat diluted, if not unnecessary. Apart from the fact that such argument cannot be countenanced in the unnecessary. Apart from the fact that such argument cannot be countenanced in the unnecessary. Apart from the fact that such argument cannot be countenanced in the light of the dictum in Hotel Blue Moon (supra), it is eviden light of the dictum in Hotel Blue Moon (supra), it is evident that an assessment under t that an assessment under Section 143(3) of the Act is consequent upon a hearing and the production of evidence Section 143(3) of the Act is consequent upon a hearing and the production of evidence Section 143(3) of the Act is consequent upon a hearing and the production of evidence on such points on which the Assessing Officer may harbour doubts and are indicated in on such points on which the Assessing Officer may harbour doubts and are indicated in on such points on which the Assessing Officer may harbour doubts and are indicated in his notice under Section 143(2) of the Act. Section 143(3 his notice under Section 143(2) of the Act. Section 143(3) of the Act contemplates an ) of the Act contemplates an assessment undertaken by the Assessing Officer upon material being produced by the assessment undertaken by the Assessing Officer upon material being produced by the assessment undertaken by the Assessing Officer upon material being produced by the assessee on grounds which are indicated by the Assessing Officer in his notice under assessee on grounds which are indicated by the Assessing Officer in his notice under assessee on grounds which are indicated by the Assessing Officer in his notice under Section 143(2) of the Act in respect whereof the Assessing Section 143(2) of the Act in respect whereof the Assessing Officer may have misgivings Officer may have misgivings or may disagree with the return filed by the assessee. Implicit in the wording of Section or may disagree with the return filed by the assessee. Implicit in the wording of Section or may disagree with the return filed by the assessee. Implicit in the wording of Section 143(3) of the Act is the indispensability of a notice under Section 143(2) thereof. 143(3) of the Act is the indispensability of a notice under Section 143(2) thereof. 143(3) of the Act is the indispensability of a notice under Section 143(2) thereof. 11. Apropos the second question framed above, it is ne Apropos the second question framed above, it is necessary that Section 292BB of the cessary that Section 292BB of the Act be noticed in its entirety: Act be noticed in its entirety: "292BB Notice deemed to be valid in certain circumstances "292BB Notice deemed to be valid in certain circumstances - Where an assessee has appeared in any proceeding or cooperated in any inquiry Where an assessee has appeared in any proceeding or cooperated in any inquiry Where an assessee has appeared in any proceeding or cooperated in any inquiry relating to an assessment or reassessment, it shall relating to an assessment or reassessment, it shall be deemed that any notice under any be deemed that any notice under any provision of this Act, which is required to be served upon him, has been duly served upon provision of this Act, which is required to be served upon him, has been duly served upon provision of this Act, which is required to be served upon him, has been duly served upon him in time in accordance with the provisions of this Act and such assessee shall be him in time in accordance with the provisions of this Act and such assessee shall be him in time in accordance with the provisions of this Act and such assessee shall be precluded from taking any objection in any pr precluded from taking any objection in any proceeding or inquiry under this Act that the oceeding or inquiry under this Act that the notice was- (a) not served upon him; or not served upon him; or (b) not served upon him in time; or not served upon him in time; or (c) served upon him in an improper manner: served upon him in an improper manner: Provided that nothing contained in this section shall apply where the assessee had Provided that nothing contained in this section shall apply where the assessee had Provided that nothing contained in this section shall apply where the assessee had raised such objection before the completion of such assessment or reassessment." raised such objection before the completion of such assessment or reassessment." raised such objection before the completion of such assessment or reassessment." 12. Even if the provision does not carry a non Even if the provision does not carry a non-obstante clause, since Section 292BB is a obstante clause, since Section 292BB is a provision of general application, it would be applicable in all situations; but only i provision of general application, it would be applicable in all situations; but only i provision of general application, it would be applicable in all situations; but only in so far as it proclaims to operate. Section 292BB of the Act, read in the context of several far as it proclaims to operate. Section 292BB of the Act, read in the context of several far as it proclaims to operate. Section 292BB of the Act, read in the context of several provisions of the Act which mandatorily require notices to be issued in divers situations, provisions of the Act which mandatorily require notices to be issued in divers situations, provisions of the Act which mandatorily require notices to be issued in divers situations, cannot be said to have dispensed with the issuance of such notices alto cannot be said to have dispensed with the issuance of such notices alto cannot be said to have dispensed with the issuance of such notices altogether. Section 292BB must be understood to cure any defect in the service of the notice and not 292BB must be understood to cure any defect in the service of the notice and not 292BB must be understood to cure any defect in the service of the notice and not authorise the dispensation of a notice when the appropriate interpretation of a authorise the dispensation of a notice when the appropriate interpretation of a authorise the dispensation of a notice when the appropriate interpretation of a provision makes the notice provided for thereunder to be mandatory or indispens provision makes the notice provided for thereunder to be mandatory or indispens provision makes the notice provided for thereunder to be mandatory or indispensable. 13. This is not a case where the assessing officer says that a notice had been issued and This is not a case where the assessing officer says that a notice had been issued and This is not a case where the assessing officer says that a notice had been issued and there is a contradiction thereof by the assessee. It is evident that the assessee carried the there is a contradiction thereof by the assessee. It is evident that the assessee carried the there is a contradiction thereof by the assessee. It is evident that the assessee carried the objection before the Commissioner (Appeals) and the Commissioner brushed as objection before the Commissioner (Appeals) and the Commissioner brushed as objection before the Commissioner (Appeals) and the Commissioner brushed aside the objection on the ground that it was a technicality without addressing the issue or objection on the ground that it was a technicality without addressing the issue or objection on the ground that it was a technicality without addressing the issue or applying his mind to such aspect of the matter. Further, it is evident from the order applying his mind to such aspect of the matter. Further, it is evident from the order applying his mind to such aspect of the matter. Further, it is evident from the order

9 ITA No. 2535/Kol/2019 Assessment Year:- 2011-12 ITA No. 2129/Kol/2019 Assessment Year: 2012-13 M/s. Weedo Ventures Pvt. Ltd. M/s. Weedo Ventures Pvt. Ltd. impugned passed by the Appellate Tribunal that no notice under Section 143(2) o impugned passed by the Appellate Tribunal that no notice under Section 143(2) o impugned passed by the Appellate Tribunal that no notice under Section 143(2) of the Act had, in fact, been issued in this case. In such a situation, where a notice that is Act had, in fact, been issued in this case. In such a situation, where a notice that is Act had, in fact, been issued in this case. In such a situation, where a notice that is mandatorily required to be issued is found not to have been issued, Section 292BB of the mandatorily required to be issued is found not to have been issued, Section 292BB of the mandatorily required to be issued is found not to have been issued, Section 292BB of the Act has no manner of operation. Act has no manner of operation. The two substantial questions of law are The two substantial questions of law are answered accordingly as follows: answered accordingly as follows: (1) If the time for issuance of the notice under Section 143(2) of the Act has expired or the If the time for issuance of the notice under Section 143(2) of the Act has expired or the If the time for issuance of the notice under Section 143(2) of the Act has expired or the time for completing the reassessment proceedings under Section 153(2) of the Act has time for completing the reassessment proceedings under Section 153(2) of the Act has time for completing the reassessment proceedings under Section 153(2) of the Act has run out, the failure to issue such notice run out, the failure to issue such notice under Section 143(2) of the Act would result in under Section 143(2) of the Act would result in the entire proceedings, including any order of assessment, to be quashed. the entire proceedings, including any order of assessment, to be quashed. the entire proceedings, including any order of assessment, to be quashed. (2) Section 292BB of the Act does not dispense with the issuance of any notice that is Section 292BB of the Act does not dispense with the issuance of any notice that is Section 292BB of the Act does not dispense with the issuance of any notice that is mandated to be issued under the Act, but mer mandated to be issued under the Act, but merely cures the defect of service of such ely cures the defect of service of such notice if an objection in such regard is not taken before the completion of the notice if an objection in such regard is not taken before the completion of the notice if an objection in such regard is not taken before the completion of the assessment or reassessment. assessment or reassessment. In addition, it is held that in the light of the Supreme Court dictum in Hotel Blue Moon In addition, it is held that in the light of the Supreme Court dictum in Hotel Blue Moon In addition, it is held that in the light of the Supreme Court dictum in Hotel Blue Moon (supra), the view expressed in Humboldt Wedag India (P.) Ltd. (supra) is per incuriam expressed in Humboldt Wedag India (P.) Ltd. (supra) is per incuriam expressed in Humboldt Wedag India (P.) Ltd. (supra) is per incuriam and, as such, not good law.” and, as such, not good law. 13. Similarly, the Hon’ble Supreme Court in the case of Similarly, the Hon’ble Supreme Court in the case of CIT vs. Laxman Das Khandelwal CIT vs. Laxman Das Khandelwal [2019] 108 taxmann.com 183 (SC), [2019] 108 taxmann.com 183 (SC), held as follows:-

“7. A closer look at Section 292BB shows that if the assessee has participated in the A closer look at Section 292BB shows that if the assessee has participated in the A closer look at Section 292BB shows that if the assessee has participated in the proceedings it shall be deemed that any notice which is required to be served upon was proceedings it shall be deemed that any notice which is required to be served upon was proceedings it shall be deemed that any notice which is required to be served upon was duly served and the assessee would be precluded from taking any objections that the no duly served and the assessee would be precluded from taking any objections that the no duly served and the assessee would be precluded from taking any objections that the notice was (a) not served upon him; or (b) not served upon him in time; or (c) served upon him in was (a) not served upon him; or (b) not served upon him in time; or (c) served upon him in was (a) not served upon him; or (b) not served upon him in time; or (c) served upon him in an improper manner. According to Mr. Mahabir Singh, learned Senior Advocate, since the an improper manner. According to Mr. Mahabir Singh, learned Senior Advocate, since the an improper manner. According to Mr. Mahabir Singh, learned Senior Advocate, since the Respondent had participated in the proceedings, the provisions of Section Respondent had participated in the proceedings, the provisions of Section Respondent had participated in the proceedings, the provisions of Section 292BB would be a complete answer. On the other hand, Mr. Ankit Vijaywargia, learned Advocate, appearing for the Respondent On the other hand, Mr. Ankit Vijaywargia, learned Advocate, appearing for the Respondent On the other hand, Mr. Ankit Vijaywargia, learned Advocate, appearing for the Respondent submitted that the notice under Section 143(2) of the Act was never issued which was submitted that the notice under Section 143(2) of the Act was never issued which was submitted that the notice under Section 143(2) of the Act was never issued which was evident from the orders passed on record as wel evident from the orders passed on record as well as the stand taken by the Appellant in the l as the stand taken by the Appellant in the memo of appeal. It was further submitted that issuance of notice under Section 143(2) of memo of appeal. It was further submitted that issuance of notice under Section 143(2) of memo of appeal. It was further submitted that issuance of notice under Section 143(2) of the Act being prerequisite, in the absence of such notice, the entire proceedings would be the Act being prerequisite, in the absence of such notice, the entire proceedings would be the Act being prerequisite, in the absence of such notice, the entire proceedings would be invalid. 8. The law on the point as regards applicability of the requirement of notice under Section t as regards applicability of the requirement of notice under Section t as regards applicability of the requirement of notice under Section 143(2) of the Act is quite clear from the decision in Hotel Blue Moon's case (supra). The 143(2) of the Act is quite clear from the decision in Hotel Blue Moon's case (supra). The 143(2) of the Act is quite clear from the decision in Hotel Blue Moon's case (supra). The issue that however needs to be considered is the impact of Section 292BB of the Act. issue that however needs to be considered is the impact of Section 292BB of the Act. issue that however needs to be considered is the impact of Section 292BB of the Act.”

10 ITA No. 2535/Kol/2019 Assessment Year:- 2011-12 ITA No. 2129/Kol/2019 Assessment Year: 2012-13 M/s. Weedo Ventures Pvt. Ltd. M/s. Weedo Ventures Pvt. Ltd. the grounds of jurisdiction, we do not consider the other issues raised by the assessee the grounds of jurisdiction, we do not consider the other issues raised by the assessee the grounds of jurisdiction, we do not consider the other issues raised by the assessee, as it would be an academic exercise it would be an academic exercise. 15. In the result, appeal of the assessee In the result, appeal of the assessee for the Assessment Year 2012 the Assessment Year 2012-13 is allowed. 16. As the facts of the case facts of the case for the Assessment Year 2011-12, 12, are identical, both parties submitted that the arguments for Assessment Year 2012 parties submitted that the arguments for Assessment Year 2012-13, has to be adopted for 13, has to be adopted for Assessment Year 2011-12. Thus, we follow our 12. Thus, we follow our order for the Assessment Year 2012 order for the Assessment Year 2012-13 and quash the assessment for the Assessment Year 2011 and quash the assessment for the Assessment Year 2011-12, for the same reasons. 12, for the same reasons. 17. In the result, both these appeals of the assessee are allowed. In the result, both these appeals of the assessee are allowed.

Kolkata, the Kolkata, the 16th day of April, 2021.

Sd/- Sd/- J. Sudhakar Reddy] [Aby T. Varkey] [J. Sudhakar Reddy Judicial Member Accountant Member Accountant Member Dated: 16.04.2021 {SC SPS} Copy of the order forwarded to: 1. M/s. Weedo Ventures Pvt. Ltd M/s. Weedo Ventures Pvt. Ltd [Earlier known as M/s. Equal Projects [Earlier known as M/s. Equal Projects Pvt. Ltd.] Property No. 11 Block-A, Maharana Pratap Enclave A, Maharana Pratap Enclave Pitampura Delhi - 110034 2. Income Tax Officer, Ward-9(2), Kolkata 9(2), Kolkata 3. Commissioner of Income Tax (Appeals) Commissioner of Income Tax (Appeals)-3, Kolkata 3. CIT(A)- 4. CIT- , 5. CIT(DR), Kolkata Benches, Kolkata. 5. CIT(DR), Kolkata Benches, Kolkata.