SMT. NITHYA GOVINDARAJAN,COIMBATORE vs. ITO, NCW-1(3), COIMBATORE

1. This is an appeal preferred by the assessee against the order of the Learned Commissioner of Income Tax (Appeals)/NFAC, (hereinafter in short "the Ld.CIT(A)”), Delhi, dated 19.01.2024 for the Assessment Year (hereinafter in short "AY”) 2011-12.

At the outset, it is noted that there is a delay of ‘101’ days in filing of the appeal. The assessee has filed an affidavit, contents of which has been perused and we find that there is a reasonable cause for the delay and therefore, we condone the delay and proceed to adjudicate the grounds of appeal raised by the assessee.

The assessee, inter alia, has raised legal issues on several fronts one of which is that the Assessment Order passed on 16.12.2019 u/s.143(3) r.w.s.147 of the Income Tax Act, 1961 (hereinafter in short "the Act") is barred by limitation u/s.153 of the Act since the notice u/s.148 of the Act was issued on 20.03.2018.

The brief facts relating to the legal issue are that the assessee a non-resident filed her return of income (RoI) for AY 2011-12 on 16.10.2018, and pursuant to the notice u/s.148 of the Act, she declared total income of Rs.6,19,650/- and the AO passed the Assessment Order on 16.12.2019 by determining total income at Rs.96,30,024/- and agricultural income for rate purposes at Rs.2,49,480/-. The AO in the Assessment Order dated 16.12.2019 has taken note of the fact of issuing notice u/s.148 of the Act on 20.03.2018 at Para No.1.1 of the Assessment Order by observing in his own words “so as to assess the income that had escaped assessment within the meaning of section 147 of the Act, a notice u/s.148 of the Act dated 20.03.2018 was issued and duly served on the assessee” and the AO have acknowledged that assessee had filed her RoI on 16.10.2018 pursuant to the notice u/s.148 of the Act on 20.03.2018. In the light of these facts, the assessee assails the action of the AO to have framed the Assessment Order on 16.12.2019 as bad in law, being barred by limitation. According to the Ld.AR for assessee, since the AO has issued notice u/s.148 of the Act on 20.03.2018 electronically, it can’t be said that it has not been served on the same day and instead it should be presumed to have been served within a matter of seconds on the very same day. Accordingly, the Ld.AR submitted that the time limit for completion of the assessment u/s.147 of the Act is governed by sec.153 of the Act wherein sub-section 2 of section 153 reads as under:

(2) No order of assessment, reassessment or recomputation shall be made under section 147 after the expiry of nine months from the end of the financial year in which the notice under section 148 was served:

The Ld.DR supporting the action of the AO submitted that the assessee having filed the RoI only on 16.10.2018, it can be presumed that assessee would have got the notice u/s.148 of the Act only few days before filing of return; and the assessee has also stated that she has been served such a notice only on 17.09.2018. Therefore, according to the Ld.DR, the AO has rightly passed the order on 16.12.2019 well within the time.

Having heard both the parties and after perusal of the records, in order to examine the aforesaid legal issue, we note from the contents of the Assessment order dated 16.12.2019, the AO has taken note of the fact of issuing notice u/s.148 of the Act on 20.03.2018 at Para No.1.1 of the Assessment Order by observing in his own words “so as to assess the income that had escaped assessment within the meaning of section 147 of the Act, a notice u/s.148 of the Act dated 20.03.2018 was issued and duly served on the assessee” and having acknowledged that assessee filed her RoI pursuant to the notice on 16.10.2018, the AO proceeded to frame the assessment on 16.12.2019 by making addition as noted supra.

In the result, appeal filed by the assessee partly allowed.