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Income Tax Appellate Tribunal, DELHI BENCH “SMC” NEW DELHI
आदेश /O R D E R This appeal has been filed by the assessee against the order of Ld.CIT(A)-NFAC dated 27.03.2023 for AY 2012-13.
Application of assessee for admission of additional ground:
The Ld. Counsel of assessee placing reliance on the judgment of Hon’ble Supreme Court in the case of NTPC Limited reported as 229 ITR 363 submitted that the ground nos. 2, 3 & 5 were not raised before the Ld.CIT(A) due to lack of advice of the tax consultant and as a matter of inadvertent omission. The Ld. Counsel submitted
I.T.A.No.1436/Del/2023 that the grounds are pure legal which goes to the root of the matter and can be adjudicated on the basis of material already available on record without any extraneous exercise. Therefore, the same may kindly be admitted for adjudication. Replying to the above, the Ld. Sr. DR oppose to the admission of the additional ground.
On careful consideration of submissions, I note that ground nos.2, 3 & 5 are legal ground which goes to the root of the matter and can be adjudicated on the basis of material already available on record. The cause show by the assessee for not raising the same before the Ld.CIT(A) is sufficient and bonafide reason. Therefore, the ground nos. 2, 3 & 5 of assessee are admitted as additional grounds of appeal.
4. I have heard arguments of both the sides on ground no.5 which is as follows: -
“5(i) That on facts and circumstances of the case, the Ld.CIT(A) has grossly erred in upholding the validity of reassessment proceedings u/s 147 in total disregard to the fact that assessment order was passed without issuing mandatory notice u/s 143(2) of the Act. (ii) That the return of income having been filed during the course of assessment proceedings vide e-filing portal, the completion of assessment without issuing mandatory notice u/s 143(2) is illegal and bad in law.”
I.T.A.No.1436/Del/2023
The ld. Counsel submitted that the Ld.CIT(A) has grossly erred in upholding the validity of reassessment proceedings u/s 147 of the Income Tax Act, 1961 (for short ‘the Act’) disregarding the fact that the reassessment order was passed without issuing mandatory notice u/s 143(2) of the Act and hence the impugned reassessment order may kindly be quashed. The Ld. Counsel also drew our attention towards reply of Income Tax Officer, Ward 2(2)(3), Ghaziabad dated 09.06.2023 para 3 and submitted that in reply to the RTI application filed by the assessee the AO clearly stated that no notice u/s 143(2) of the Act has been issued in the case of the assessee for AY 2012-13. The Ld. Counsel has placed reliance on the judgment of Hon’ble Jurisdictional Delhi High Court in the case of PCIT Vs. Silver Line reported as 383 ITR 455 (Del.) to submit that the failure of the AO in issuing notice u/s 143(2) of the Act is fatal and not curable u/s 292BB of the Act. Therefore, the impugned reassessment order may kindly be quashed. The Ld. Counsel further placing reliance on the judgment of Hon’ble Jurisdictional High Court of Delhi dated 22.03.2016 in the appeals CIT Vs. Delhi Kalyan Samiti (ITA 696/2015) and other connected appeals submitted that even if the return filed by assessee is not accepted then also the AO
I.T.A.No.1436/Del/2023 has to issue a notice u/s 143(2) of the Act for proceeding further is a mandatory requirement of law.
Replying to the above, the Ld. Sr. DR supported the orders of the authorities below and submitted that the defect in the proceedings of the AO is curable u/s 292BB of the Act.
On careful consideration of the submissions, first of all we note that the reply/information issued by the ITO vide dated 09.06.2023 (assessee paper book page 7 & 8) clearly revealed that the AO has not issued any notice u/s 143(2) of the Act to the assessee for AY 2012-13. Thus, when undisputedly no notice has been issued by the AO u/s 143(2) of the Act then as per the judgment of Hon’ble Jurisdictional High Court of Delhi in the case of PCIT vs. Silver Line (supra) failure of Assessing Officer in the assessment proceedings to issue notice u/s 143(2) of the Act prior to finalizing reassessment order cannot be condoned by referring to section 292BB of the Act. Therefore, respectfully following the said proposition, we hold that the impugned reassessment order dated 25.11.2019 is bad in law being legally unsustainable. Hence, I quash the same. Accordingly, the additional ground no. 5 of assessee is allowed.
I.T.A.No.1436/Del/2023
Since Ld. Representatives of both the sides have not placed any submissions on other grounds of appeal, therefore, I do not deem it just and proper to adjudicate the same in absence of any submissions.
In the result, appeal of the assessee is allowed as indicated above.