Principal Commissioner Of Income Tax 2, Kolkata v. M/S. Eversafe Securities Pvt. Ltd

ITAT/156/2022IA NO: GA/1/2022, GA/2/2022 PRINCIPAL COMMISSIONER OF INCOME TAX 2, KOLKATAVS.M/s. EVERSAFE SECURITIES PVT. LTD. BEFORE :THE HON’BLE JUSTICE T.S. SIVAGNANAMAndTHE HON’BLE JUSTICE HIRANMAY BHATTACHARYYADate : 2[nd] January, 2023 Appearance :Mr. Tilak Mitra, Adv.…for appellant.Mr. Avratosh Mazumder, Sr. Adv.Mr. Avra Mazumder, Adv...for respondent The Court : - We have heard Mr. Tilak Mitra, learned standing counsel for theappellant and Mr. Avratosh Mazumder, learned Senior Advocate for the respondentassessee. There is a delay of 244 days in filing the appeal. We have perused the affidavitfiled in support of the petitioner and found sufficient cause has been shown for notpreferring the appeal within the period of limitation. Hence, the petition is allowed.Delay in filing the appeal is condoned. This appeal by the revenue under Section 260A of the Income Tax Act, 1961 (theAct) is directed against the order dated 30[th] April, 2021 passed by the Income TaxAppellate Tribunal, A Bench in ITA/604/KOL/2020 for the assessment year 2012-13.The revenue has raised the following substantial questions of law for consideration:- i)Whether on the facts and circumstances of the instant case and in law theLearned Income Tax Appellate Tribunal has grossly erred in law indeciding on new additional grounds as points of law raised for the firsttime, without recording reasons and without passing a speaking order toadmit new additional grounds which is in violation of Rule 46A of the I.T.Rule 1962 ? ii) Whether on the facts and circumstances of the instant case and inlaw the Learned Income Tax Appellate Tribunal has erred in holding thatthe otice under section 143(2) of the Act issued by the Assessing Officer asnon-est, while the issuing assessing officer, had jurisdiction over theassessee at the time of issuance of notice under section 143(2) of theIncome Tax Act, 1961 ? We have heard Mr. Tilak Mitra, learned standing counsel for the appellant andMr. Avratosh Mazumder, learned Senior Advocate for the respondent assessee. The short issue which falls for consideration before the learned Tribunal waswhether the assessment order passed under Section 143(3) of the Act dated 14.03.2015by the Income Tax Officer, ward V (3), Calcutta is bad in law without a notice underSection 143(2) of the Act was not issued by the jurisdictional assessing officer. It is notin dispute that the notice was not issued by the jurisdictional assessing officer.However, the revenue in appeal is before us contending that such a ground was nevercanvassed by the assessee before the Commissioner of Income Tax (Appeals) when theychallenged the assessment order dated 14.03.2015 and raised such an issue for thefirst time before the learned Tribunal. The settled legal position is that there can be noestoppel against law. Furthermore, the issue which has been raised before the learnedTribunal is a jurisdictional issue which goes to the root of the matter. Therefore, the learned Tribunal had rightly taken note of the legal position andheld the assessment to be bad in law. Thus we find there is no substantial questions oflaw arising for consideration in this appeal. Consequently, the appeal fails and dismissed. (T.S. SIVAGNANAM, J.) (HIRANMAY BHATTACHARYYA, J.)