KRISHNA BOTHRA,JAIPUR vs. ITO, WARD 6(2), JAIPUR

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ITA 556/JPR/2025Status: DisposedITAT Jaipur14 August 2025AY 2010-115 pages

In favour of the assessee: the assessee's appeal was allowed. From the AI summary of this appeal.

AI SummaryAllowed

What did the Tribunal hold?

The Tribunal held that the reassessment proceedings for Assessment Year 2010-11 were illegal and bad in law and deserved to be quashed. The reasoning was based on the admitted fact that no notice under Section 143(2) was issued and served upon the assessee after she filed her return in response to the notice under Section 148. The Tribunal noted that while the AO referred to a date for issuing notice under Section 143(2) in the order sheet, there was no reference to any such notice being issued or served in the order sheet entries from 13/08/2015 to 18/03/2016. The assessee also furnished an affidavit confirming non-receipt of such notice, and the DR failed to rebut these facts. The Tribunal relied on the judgments of the Hon'ble Bombay High Court in ACIT vs. Geno Pharmaceuticals Ltd. and the Hon'ble Allahabad High Court in CIT vs. Rajeev Sharma, which held that notice under Section 143(2) is mandatory and its absence renders reassessment proceedings invalid. Consequently, the reassessment proceedings for AY 2010-11 under Section 147 were quashed, and the impugned additions were deleted. Ground No. 2 was allowed. The remaining grounds were dismissed as infructuous.

What were the facts?

The assessee, Krishna Bothra, filed an appeal before the Income Tax Appellate Tribunal (ITAT) challenging an order dated 30/05/2023 passed by the Commissioner of Income Tax (Appeals)/NFAC, Delhi, under Section 250 of the Income Tax Act, 1961. The appeal pertains to Assessment Year 2010-11. There was a delay of 616 days in filing the appeal, attributed to the notice being sent to a former tax consultant and the demise of the senior partner of the tax consultant. The ITAT condoned the delay, finding sufficient cause. The core of the dispute revolves around reassessment proceedings initiated under Section 147 after the assessee filed a return in response to a notice under Section 148.

What were the issues?

1. Whether the reassessment proceedings carried out in the case of the assessee are illegal, bad in law, and liable to be quashed due to the non-issuance and non-service of a notice under Section 143(2) of the Income Tax Act, 1961, after the filing of a return in response to a notice under Section 148. (Question of law) Assessee's Contention: The Assessing Officer (AO) failed to issue and serve notice under Section 143(2) after the assessee filed the return of income electronically on 11/02/2016 in compliance with the notice under Section 148. Therefore, the reassessment proceedings are bad in law and liable to be quashed. The assessee relied on decisions in Kamla Devi Sharma vs. ITO-7(4), Ramakant Sharma vs. ITO, Ward-3(5), Jaipur, and ACIT vs. Geno Pharmaceuticals Ltd. (Bom.). Revenue's Contention: The AO mentioned in the assessment order that notice under Section 143(2) of the Act was issued to the assessee. The Departmental Representative (DR) supported the orders of the lower authorities.

Which sections of the Income-tax Act were involved?

Section 143(2),Section 147,Section 148,Section 250

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, JAIPUR “SMC” BENCH : JAIPUR

Before: DR. MANISH BORAD

This appeal at the instance of assessee for the Assessment Year 2010-11 (A.Y.) is directed against the order of Ld. Commissioner of Income Tax (Appeals)/NFAC, Delhi [“CIT(A)”], dated 30/05/2023 framed u/s. 250 of the Income Tax Act, 1961 (for short, 'the Act').

2.

Registry has informed that there is a delay of 616 days in filing of the present appeal. Application for condonation of delay along with affidavit is placed on record. A perusal of the same indicates that the delay has arisen on account of two reasons; firstly, the email on which notice of hearing as well as appellate order were sent, pertains to the previous Tax Consultant; and second, the senior partner of the Tax Consultant CA-Mr. H.M.

2 ITA.No.556/JPR/2025 (Krishna Bothra) Singhvi was diagnosed for cancer and later on, he expired on 29/03/2024.

3.

After hearing the Departmental Representative and carefully going through the application for condonation of delay, I find that the assessee has been prevented with sufficient cause and, therefore, taking liberal and justice oriented approach, I hereby condone the delay and admit the appeal for adjudication.

4.

The assessee has raised seven grounds of appeal. I will first take up the legal issue raised regarding non-serving of notice u/s. 143(2) of the Act and due to such non-issuance of notice u/s. 143(2), reassessment proceedings carried out in the case of assessee are illegal, bad and liable to be quashed.

5. At the outset, learned counsel for the assessee, referring to the certified copy of note sheet placed at page Nos. 17-19 of the paper book along with affidavit given by the assessee, has claimed that after filing the return of income electronically on 11/02/2016 in compliance to the notice u/s. 148, Ld.AO has failed to issue and serve notice u/s. 143(2) of the Act, and therefore, reassessment proceedings are bad in law and liable to be quashed. In support of his contention, assessee placed reliance on the decision of this Tribunal in the case of Kamla Devi Sharma vs. ITO-7(4) dated 06/02/2018 and Ramakant Sharma vs. ITO, Ward-3(5), Jaipur in and also the judgment of the Hon'ble Bombay High Court in the case of ACIT vs. Geno Pharmaceuticals Ltd. [2013] 214 Taxman 83 (Bom.).

3 ITA.No.556/JPR/2025 (Krishna Bothra) 6. On the other hand, ld. DR vehemently argued supporting the orders of both the lower authorities and submitted that the Ld.AO has mentioned in the assessment order that notice u/s. 143(2) of the Act has been issued to the assessee.

7.

I have heard rival contentions and perused the material placed before me.

8.

The assessee in the instant case is an individual. Based on the information about sale of immovable property and there being a difference in stamp duty value and the actual sale consideration, Ld.AO issued notice u/s.148 of the Act on 20/06/2014 for reopening the assessment and asked the assessee to file the return of income. The assessee in response to the notice, filed return electronically on 11/02/2016 declaring income of Rs. 2,97,250/-. After filing return of income, Ld.AO is required to issue and serve notice u/s.143(2) for carrying out the reassessment proceedings. Now the assessee, before me, has claimed that no notice u/s. 143(2) has been served upon the assessee. Reference has been made to the order sheet placed at page Nos. 17-19. On going through the same, I notice that on 29/02/2016 which Ld.AO has referred the date of notice u/s. 143(2) issued, but in the order sheet on this date, the Ld.AO has observed that “Mr. Singhvi, AR failed to furnish the copy of bank statement from 2006 to 31/03/2010 and therefore, payments could not be verified from the bank through which the assessee has paid her share of purchased consideration.” The Ld.AO thereafter, adjourned the case to 18/03/2016. I have gone through the order sheet having the dates from 13/08/2015 to 4 ITA.No.556/JPR/2025 (Krishna Bothra) 18/03/2016, and there is no reference of any notice issued u/s. 143(2) of the Act. The assessee has also furnished the affidavit stating therein that she has not received any notice u/s. 143(2) of the Act. Ld. DR failed to rebut these facts stated by the learned counsel for the assessee. Once it is an admitted fact that no notice u/s. 143(2) has been issued and served upon the assessee after filing the return in response to notice u/s. 148, I find that the case of the assessee is squarely covered by plethora of decisions which has been referred and relied on by the learned counsel for the assessee. The Hon'ble Bombay High Court in the case of Geno Pharmaceuticals Ltd. (supra) has held that notice u/s. 143(2) is mandatory and in absence of such service cannot proceed to make enquiry on return filed in compliance with notice issued u/s.

148.

The Hon'ble Allahabad High Court in the case of CIT vs. Rajeev Sharma (192 Taxman 197) has held that „in absence of any notice issued under sub-section (2) of section 143 after receipt of fresh return submitted by the assessee u/s. 148 the entire procedure adopted for escaped assessment shall not be valid‟. This Tribunal in the case of Ramakant Sharma (supra) has held that since in the present case, no notice u/s. 143(2) of the Act was issued or served, therefore all the subsequent assessment proceedings as invalid.

9.

Respectfully following the above referred judicial precedents and also considering the facts of the instant case where no notice u/s. 143(2) has been served upon the assessee after filing of return u/s. 148 for A.Y. 2010-11, in my considered view, Ld.AO failed to assume a valid jurisdiction for carrying out reassessment

5 ITA.No.556/JPR/2025 (Krishna Bothra) proceedings and therefore the impugned reassessment proceedings are illegal and bad in law and deserves to be quashed. Accordingly, re-assessment proceedings for A.Y. 2010-11 u/s.147 of the Act are hereby quashed and the impugned additions stand deleted. Ground No.2 raising this legal issue stands allowed.

10.

So far as the remaining grounds of appeal are concerned, since I have already quashed the re-assessment proceedings for A.Y. 2010-11 in question, dealing with the remaining grounds merely academic in nature and, therefore, held to be dismissed as infructuous.

11.

In the result, appeal of the Assessee is allowed as per the terms indicated hereinabove.

Order pronounced in the open Court on 14.08.2025.

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