Assistant/Appellant/S v. Nagendra Prasad

IN THE HIGH COURT OF JUDICATURE AT PATNAMiscellaneous Appeal No.662 of 2014 ====================================================== 1.The Commissioner Of Income Tax-11 Patna . 2.Assistant Commissioner of Income Tax, Circle-5, Patna. ... ... Assistant/Appellant/s Versus Nagendra Prasad S/O Sri Suraj Prasad, Suraj Bhawan, Main Road, Buxar. ... ... Respondent/Respondent/s ======================================================Appearance :For the Appellant/s: Mrs. Archana Sinha, AdvocateFor the Respondent/s: ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE PARTHA SARTHYORAL JUDGMENT(Per: HONOURABLE THE CHIEF JUSTICE) Date : 02-08-2023 1. The appeal is filed against the order of theTribunal setting aside an order under Section 143(3)/147 ofthe Income Tax Act, 1961. 2. The assessee had initially moved the High Courtrelying on the decision of the Hon’ble Supreme Court inAssistant Commissioner of Income-Tax v. Hotel BlueMoon [(2010) 321 ITR 362 (SC)] which writ petition wasdismissed refusing invocation of the extraordinary remedyand relegating the assessee to the statutory remedy. 3. The Tribunal found, relying on the decision inHotel Blue Moon (supra) that the proceedings are liable to be struck down. It was held that the return was filed by theassessee in response to the notice under Section 148 thoughdelayed and in such circumstance, there should have been anotice issued under Section 143(2) as has been held inHotel Blue Moon (supra). 4. The only question of law arising in the facts andcircumstances of the case is whether notice should havebeen issued under Section 143(2) of the Income Tax Act? 5. Admittedly, the notice was issued by theAssessing Officer under Section 148 of the Act on14.07.2008 requiring the assessee to file a return withinthirty days. A return was filed much later on 31.03.2009,after eight and a half months. 6. On identical facts, in M.A. No.239 of 2011 titled as Chand Bihari Agrawal v. Commissioner OfIncome Tax, Central, Patna decided on 25.07.2023, thisCourt considered the issue and held against the revenue. 7. We find that the question of law has to beanswered in favour of the assesee and against the revenue.Hotel Blue Moon (supra) governs the issue which has beenfollowed in Chand Bihari Agrawal (supra). 8. The Miscellaneous Appeal stands dismissed. (K. Vinod Chandran, CJ) Sunil/- (Partha Sarthy, J) AFR/NAFRNAFRCAV DATEUploading Date08.08.2023Transmission Date