SRI KRISHNENDU CHOWDHURY,PURBA MEDINIPUR vs. ACIT, CIRCLE - HALDIA, PURBA MEDINIPUR

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ITA 1663/KOL/2017Status: DisposedITAT Kolkata15 December 2017AY 2009-103 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 service of notice under Section 143(2) before the limitation period is mandatory. Since the notice was served after the due date, the assessment was deemed bad in law.

What were the facts?

The assessee claimed that a notice under Section 143(2) of the Income Tax Act was not served on him before the statutory due date. The Revenue was unable to provide evidence of timely service.

What were the issues?

Whether the assessment is bad in law due to the non-service of the statutory notice under Section 143(2) within the prescribed time limit.

Which sections of the Income-tax Act were involved?

Section 143(2)

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, KOLKATA ‘SMC’ BENCH, KOLKATA

Before: Sri J. Sudhakar Reddy, Hon’ble]

This appeal filed by the assessee is directed against the order of the ld. Commissioner of Income Tax (Appeals)-7, Kolkata (hereinafter the ‘ld. CIT (A)’), passed u/s 250 of the Income Tax Act, 1961 (the ‘Act’), dt. 26/05/2017, for the Assessment Year 2009-10.

2.

We first take up the jurisdictional issue of service of notice under section 143 (2) of the Act. The undisputed fact is that this notice was issued on 28/09/2010. The assessee claims that the notice has not been served on him, on or before 30/09/2010, which is the statutory date before which the said notice has to be served as the assessee has filed his return of income on 24/03/2009.

3.

The revenue was directed to produce evidence of service of notice under section 143 (2) of the Act on the assessee before the due date i.e., 30/09/2010. The evidence produced before me demonstrates, that this notice under section 143 (2) of Assessment Year: 2009-10 Shri Krishnendu Chowdhury the Act, was in fact served on the assessee on 05/10/2010. This is clear from the letter dated 13/04/2017, addressed by the ACIT Circle-27 (1), Haldia, to the ld. Commissioner of Income Tax (Appeals)-10 Kolkata. This fact could not be controverted by the ld. D/R.

4.

The Kolkata Bench of the Tribunal in the case of Krishnendu Chowdhury Versus Income-Tax Officer reported in [2017] 55 ITR (Trib) 52, had held that service of notice under section 143 (2) of the Act, before the limitation period specified in the Act is mandatory and in the absence of the same the assessment is bad in law.

5.

In the case of Shri Sukumar Chandra Sahoovs Acit, Circle-27,Haldia being order dated 27/09/2017, the Kolkata ‘C’ bench of the Tribunal held that issuance of statutory notice under section 143 (2) of the Act, beyond the limitation period specified in the statute renders the assessment bad in law.

5.1. Section 143 (2) of the Act, mandates service of notice and not mere issuance of the same, prior to the expiry of six months from the end of the Financial Year in which the return is furnished.

6.

In view of the above discussion, I hold that the assessment is bad in law as the statutory requirement of law, being service of notice under section 143 (2) of the Act, has not been complied with.

7.

In the result of the appeal of the assessee is allowed.

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