PRADIP CHANDRA ROY,SILIGURI vs. I.T.O., WARD - 1(4), SILIGURI, SILIGURI

This appeal filed by the assessee pertaining to the Assessment Year (in short ‘AY’) 2014-15 is directed against the order passed u/s 250 of the Income Tax Act, 1961 (in short the ‘Act’) by ld. Commissioner of Income-tax (Appeals)- NFAC, Delhi [in short ld. ‘CIT(A)’] dated 05.06.2024 arising out of the assessment order framed u/s 147 read with Section 144 of the Act dated 23.02.2023. 1.1. The brief facts of the case of the appellant are that the assessee, a retired person of Group-D staff of PWD Department, Government of West I.T.A. No.: 1416/KOL/2024 Assessment Year: 2014-15 Pradip Chandra Roy. Bengal, do not have any taxable income and he did not register his PAN at I.T. Portal. The assessee did not file any income tax return for the AY 2014-15 as his income remained below taxable limit. The Assessing Officer (hereinafter referred to as ld. 'AO') issued notice u/s 133(6) of the Act on 29.08.2016 on the basis that the Department was in possession of information regarding transaction made by the assessee in immovable property in the F.Y. 2013-14. It is alleged by the ld. AO that even after various reminders the assessee did not make any compliance and a notice u/s 148 of the Act dated 31.01.2021 was issued on 31.03.2021 after obtaining the necessary satisfaction of the PCIT, Siliguri. It is further alleged in the order that as there was no e-mail address registered in the e-filing Portal, the notice was served to the assessee on 28.12.2021 by affixation by the departmental Inspector. The reason to believe that your income chargeable to tax for the AY 2014-15 has escaped assessment within the meaning of Section 147 of the Act. The ld. AO had assessed the appellant by considering the entire stamp duty value of the sold property for Rs. 16,83,600/-. Instead of considering 66.67% value an amount of Rs. 16,83,600/- is treated as undisclosed capital gain u/s 148 of the Act. The said order has been challenged by the assessee before the ld. CIT(A) but appeal of the assessee has also been dismissed as there was no response on behalf of the assessee before the ld. CIT(A). Being aggrieved and dissatisfied with the impugned order, the present appeal has been preferred. 1.2. Ld. Counsel for the assessee challenges the impugned order thereby taking various grounds in the memo of appeal but his main contention is that reopening of the assessment by the ld. AO by issuing of notice u/s 148 of the Act is bad in law. The ld. Counsel for the assessee has drawn our attention of this Bench that ld. AO without verifying the correctness of the information nor he did get himself satisfied by obtaining a copy of the sale deed from the office of the Additional District Sub-Registrar wrongly added back the entire stamp duty value of the sold property for Rs. 16,83,600/-. The ld. Counsel for the assessee further submits that it is apparent from the order of the ld. AO that ld. AO had signed the notice u/s 148 of the Act on 31.03.2021 but it was Page 2 of 6 I.T.A. No.: 1416/KOL/2024 Assessment Year: 2014-15 Pradip Chandra Roy. not issued on 31.03.2021 rather the notice was served on the assessee on 28.12.2021 that is much after the due date of the limitation that is bad in law. He has cited the following decisions: a) Ardent Steel Ltd. vs. ACIT (2018) 405 ITR 422 (Chhattisgarh) b) Kanubhai M. Patel vs. Hiren Bhatt (208) 334 ITR 25 (Guj.) c) Daujee Abhushan Bhandar P. Ltd. vs. Union of India, Writ Tax No. 78 of 2022 1.3. On the other hand, ld. D/R supports the impugned order.

We have perused the records and find that the assessee has purchased a small residential flat jointly with his wife Smt. Kalpana Roy (Now dead, as the death certificate of Kalpana Roy has been filed by the assessee). It is also the definite case of the assessee that Kalpana Roy, wife of the assessee and the co-owner of the aforesaid property has died intestate leaving behind her husband and two adult sons who inherited her property in equal shares. the ld. Counsel for the assessee has also filed the sale deed before us that goes to reflect that assessee was co-owner of the said property. Now, coming to the legal question, it appears to us that the ld. AO had reopened the assessment of the assessee on wrong consideration of fact that the assessee was 100% owner of the sold property and was liable to pay tax on 100% stamp duty on the sold property which is apparently sold by him and his two sons. Sale deed has also been filed by the assessee before us. It admits of no doubt that the case of the assessee was reopened by issuance of notice on 31.03.2021 for the AY 2015-16 that is beyond four years. The ld. AO before issuance of notice u/s 148 of the Act has only stated that he received credible information that the assessee had sold immovable property. Hon'ble Apex Court in the case of ACIT vs. CEAT Ltd. reported in 449 ITR 171 has clearly gave their observation that— "It is not in dispute that the assessment was sought to be re-opened beyond four years. Therefore, all the conditions under Section 148 of the Act, 1961 for re-opening the assessment beyond four years are required to be satisfied." 2.1. Hon'ble Calcutta High Court in the case of Jay Shree Tea & Industries Ltd. vs. DCIT reported in 245 ITR 0567 has further held that— "Considering

In view of the discussion made above, we hold that mere digitally signing the notice is not the issuance of notice. Since the impugned notice under Section 148 of the Act, 1961 was issued to the petitioner on 06.04.2021 through e-mail, therefore, we hold that the impugned notice under section 148 of the Act, 1961 is time barred. Consequently, the impugned notice is quashed.”

Keeping in view the facts of the case awa law settled down as discussed above, we are in this view that issuance of notice is bad in law. Since issuance of notice is bad in law, hence, all the consequent orders passed thereafter has no legal force and accordingly set aside.

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