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Income Tax Appellate Tribunal, KOLKATA ‘D’ BENCH, KOLKATA
Before: Sri S.S. Godara & Sri M. Balaganesh
Date of concluding the hearing : December 27th , 2018 Date of pronouncing the order : January 25th , 2019 ORDER Per S.S. Godara, JM :-
This revenue’s appeal for Assessment Year 2008-09 arises against Commissioner of Income Tax (Appeals)-6, Kolkata’s order dated 31/10/2017 passed in case No. 15/CIT(A)-6/Kol/2016-17, involving proceedings u/s 147/144, of the Income Tax Act, 1961 (in short ‘the Act’).
1.1. Heard both parties. Case files perused. 2. The revenue raised the following substantive grounds in the instant appeal:- “1. That on facts and in circumstances of the case and in law, the ld. CIT(A) has erred in not upholding the fact that notice issued by ITO is within his jurisdiction and served within the time frame.
That on facts and in circumstances of the case and in law, the ld. CIT(A) has erred in not upholding the fact that assessment order passed by the AO is on the basis of valid notice issued by the AO after taking prior approval of the appropriate authority.
That on facts and in circumstances of the case and in law, the ld. CIT(A) has erred in not upholding the addition of Rs.1,91,24,370/- made by AO is justified and as per law.”
Assessment Year: 2008-09 M/s. A.K. Industries
Learned departmental representative takes us to the CIT(A)’s findings quashing the impugned re-opening/re-assessment as follows:-
Assessment Year: 2008-09 M/s. A.K. Industries Assessment Year: 2008-09 M/s. A.K. Industries Assessment Year: 2008-09 M/s. A.K. Industries Assessment Year: 2008-09 M/s. A.K. Industries Assessment Year: 2008-09 M/s. A.K. Industries Assessment Year: 2008-09 M/s. A.K. Industries
It is vehemently contended at the Revenue’s behest that the CIT(A) has erred in law as well as on facts in holding that the ITO, Ward 1(1), Noida, did not have territorial jurisdiction for re-opening the assessment after recordings reasons of escapement of assessee’s taxable income from being assessed. It then quotes hon’ble delhi high court’s judgment in the case of Abhishek Jain vs. ITO [2018] 94 taxmann.com 355 (Delhi) holding that the Assessing Officer’s jurisdiction cannot be called into question at the concerned tax payer’s instance after expiry of one month from date on which he was served with the notice for reopening under section 148 of the Act. We do not find any merit in either
Assessment Year: 2008-09 M/s. A.K. Industries of the Revenue’s twin arguments. Case file suggests that the assessee has been assessed at Hooghly only right from Assessment Year 2002-03, onwards. There is no dispute that it is the ACIT, Circle-24, Hooghly, ITO Noida, who had framed the impugned re- assessment in the instant case. It thus emerges to be an instance of Section 148 notice issued by an Assessing Officer not having territorial jurisdiction going to root of the matter. Hon’ble Jurisdictional High Court (supra) categorically holds that such an erroneous assumptions of Section 148 proceedings is not sustainable in law. We therefore accept the assessee’s arguments supporting the CIT(A) action quashing the impugned reopening.
Coming to the Revenue’s latter plea based on hon’ble Delhi high court’s judgement (supra) we find that section 148 notice stood served on the assessee on 09/03/2016 followed by its detailed objections filed before the Assessing Officer on 21/03/2016 i.e., within a month. This judicial precedent does not apply in facts of the case in hand therefore.
This Revenue’s appeal is dismissed.