MAMTA CHORARIA,HOWRAH vs. ITO, WARD-36(1), KOLKATA

At the outset, the ld. Counsel for the assessee submitted that the time limit to issue notice u/s 148 of the Act for Assessment Year 2014- 15, expired on 11/03/2021 and notice u/s 148 of the Act was issued and served through e-mail on 01/04/2021. He thus contended that the notice u/s 148 of the Act is barred by limitation and, therefore, the 2 Assessment Year: 2014-15 Mamta Choraria

On the other hand, the ld. D/R vehemently argued supporting the order of the lower authorities and stated that the notice was issued u/s 148 of the Act on 31/03/2021 only and may be for some technical reason, the e-mail was sent on 01/04/2021. 4. We have heard rival contentions and perused the record placed before us. Case of the assessee has been reopened for Assessment Year 2014-15 by issuance of notice u/s 148 of the Act. For re-opening the case of the assessee for Assessment Year 2014-15, the time limit of six year from the end of the assessment year ends on 31/03/3021. So, the notice u/s 148 of the Act is to be issued and served upto 31/03/2021. Now, in the instant case, the notice via e-mail was sent to the assessee along with the attachment of notice u/s 148 of the Act on 01/04/2021. Copy of the e-mail is at page 56 of the paper book, which is reproduced below:- “Dear MAMTA CHORARIA,

We further note that though the notice issued u/s 148 of the Act is dt. 31/03/2021 and has been e-mailed to the assessee on 01/04/2021, but even in the e-proceedings, available on the income-tax portal under the login-id of the assessee, notice u/s 148 of the Act is stated to have been issued on 01/04/2021. 5. From perusal of the above, it remains an admitted fact that the notice was served upon the assessee on 01/04/2021. Now, under these given facts and circumstances, where the issuance of notice u/s 148 of the Act is barred by limitation, the re-assessment proceedings deserves to be quashed in view of the settled judicial precedents. The ITAT Kolkata Bench, while dealing with identical set of facts in the case of Sandeep Kumar Shah vs. ITO, Wd-50(1), Kolkata in ITA No. 07/Kol/2023, order dt. 30/11/2023, has held as under:- “5. We have heard rival contentions and perused the record placed and carefully gone through the decision relied upon by the assessee. The legal issue raised by the assessee in the additional ground is that notice u/s 148 of the Act is time barred and, therefore, the reassessment proceedings carried out are without juri iction and liable to be quashed. We notice that the assessee, who is an individual, filed his return of income for Assessment Year 2010-11 on 29/07/2010 declaring income of Rs.6,24,228/-. The return was processed u/s 143(1) of the Act and thereafter the ld. Assessing Officer received certain information from DDIT

Now, the ld. Counsel for the assessee has pleaded that the notice was served on 01/04/2017 and, therefore, it is time barred which renders the assessment proceedings without juri iction. Reliance was placed on the judgment of the Hon’ble Juri ictional High Court in the case of M/s. Marudhar Vintrade Pvt. Ltd. (supra), wherein the Hon’ble Court while examining the issue of issuance of notice u/s 148 of the Act observed that the last date for issuing and serving the notice was 31/03/2021 but though the notice was dt. 31/03/2021 but it was actually uploaded for communication on 01/04/2021 at 03:00 A.M.. The Hon’ble Court held that since the provisions w.e.f. 01/04/2021 has been amended issuing of notice u/s 148A of the Act was mandatory before issuing notice u/s 148 of the Act, and in absence thereof all subsequent proceedings are not sustainable in law and same are quashed. We further notice that this Tribunal in the case of Osian Stock Broking Pvt. Ltd. (supra) considering similar type of issue pertaining to the issue of notice u/s 143(2) of the Act being time barred has held as follows:- “3. The assessee has contested the impugned addition on various ground, inter alia, that the Assessing Officer had no reason to believe that the income of the assessee has escaped assessment; that the concerned Assessing Officer did not have territorial juri iction to frame the assessment and further that the notice issued u/s 143(2) of the Act was time barred and, therefore, the assessment framed was void ab initio.

At the outset, the ld. counsel for the assessee has submitted that since the question relating to the issue of notice u/s 143(2) of the Act hits at the very validity of the assessment order, therefore, the said issue may be adjudicated first. The ld. counsel has further submitted that the last date for issue of notice u/s 143(2) was on 30.09.2015. He has further submitted that though the notice has been shown to be signed on 30.09.2015 itself however, the same was sent at the email address of the assessee 03.11.2015. He, therefore, has submitted that by mere signing of the notice by the concerned Assessing Officer, it would not mean that the same was issued on the said date. That the date of issue of the said notice would be the date on which the email was sent on 03.11.2015. He, in this respect, has relied upon the decision of the Hon’ble Juri ictional High Court in the case of ‘Marudhar Vintrade Pvt. Ltd. vs. Union of India & Ors.’ in WPA No.4382 of 2022 order dated 12.04.2022. 5. The ld. DR, on the other hand, has submitted in this case the notice for reopening of the assessment u/s 148 of the Act was issued within the time. That once the notice u/s 148 of the Act was issued, there was no relevance of delayed issuance of notice u/s 143(2) of the Act. He has further submitted even otherwise the identity of issuance of notice will be the date on which the Assessing Officer signed the said notice which was on 30.09.2015 and hence it cannot be said that the notice u/s 143(2) of the Act was time barred.

We have heard the rival contentions and gone through the records. The notice in this case has been shown to be signed on 30.09.2015, however, the same was emailed to the assessee on 03.11.2015. The Hon’ble Juri ictional Calcutta High Court in the case of Marudhar Vintrade Pvt. Ltd. vs. Union of India & Ors.’ (supra) considering the facts that the notice u/s 148 of the Act was signed on March 31 2021, however, it was actually

In the result, the appeal of the assessee stands allowed.”

From perusal of the above judgments and decisions it remains a legally settled position that the notice should not only be issued but also be served before the expiry of time limit provided under the Act. In other words, if the last date for issuing notice u/s 148 of the Act is 31/0/2017, then the notice should be served on or before 31/03/2017. In the instant case, the ld. Assessing Officer was required to serve notice on the assessee on or before 30/03/2017 but it was finally served on 01/04/2017 and, therefore, since the notice u/s 148 of the Act was not issued within the specified time period, the Assessing Officer could not have assumed juri iction to frame the reassessment order u/s 147/143(3) of the Act. Therefore, the impugned assessment order dt. 22/12/2017 is bad in law and non-est. Additional ground raised by the assessee is allowed. Since we have allowed the additional ground and quashed the assessment order, the remaining legal grounds as well as the grounds raised on merits are rendered academic in nature.

In the result, appeal of the assessee is allowed.

Consistent with the view taken therein, we are inclined to hold that the impugned assessment order dt. 28/03/2022, is bad in law and 6 Assessment Year: 2014-15 Mamta Choraria

In the result, appeal of the assessee is allowed. Order pronounced in the Court on 1st May, 2024 at Kolkata. (PRADIP KUMAR CHOUBEY) ACCOUNTANT MEMBER Kolkata, Dated 01/05/2024 *SC SrPs

""यथ" / The Respondent 3. संबंिधत आयकर आयु" / Concerned Pr. CIT 4. आयकर आयु" अपील ( ) / The CIT(A)- 5. िवभागीय "ितिनिध ,आयकर अपीलीय अिधकरण, कोलकाता/DR,ITAT, Kolkata, 6. गाड" फाई/ Guard file.