Principal Commissioner Ofincome Tax-2, Kolkata v. M/S. Cosmat Traders Pvt. Ltd

ITAT/78/2022IA No.GA/2/2022 IN THE HIGH COURT AT CALCUTTASpecial Jurisdiction (Income Tax)ORIGINAL SIDE PRINCIPAL COMMISSIONER OFINCOME TAX-2, KOLKATA -Versus- M/S. COSMAT TRADERS PVT. LTD. Appearance:Mr. Soumen Bhattacharjee, Adv....for the appellant. Mr. Abhratosh Majumdar, Sr. Adv.Mr. Avra Mazumder, Adv.Mr. Binayak Gupta, Adv.Mr. Kausheyo Roy, Adv.Mr. suman Bhowmik, Adv....for the respondent. BEFORE: The Hon’ble JUSTICE T.S. SIVAGNANAM -And- The Hon’ble JUSTICE HIRANMAY BHATTACHARYYA Date : 15[th] November, 2022. The Court: This appeal filed by the revenue underSection 260A of the Income Tax Act, is directed against theorder dated 21[st] April, 2021 passed by the Income Tax AppellateTribunal, “B” Bench, Kolkata (the Tribunal) in ITANo.457/Kol/2020 for the assessment year 2012-13. The revenue has raised the following substantial questions of law for consideration: We have heard Mr. Soumen Bhattacharjee, learnedstanding counsel appearing for the appellant/revenue and Mr.Abhratosh Majumdar, learned senior counsel assisted by Mr.Avara Mazumder, learned Advocate for the respondent/assessee.After elaborately hearing the learned Advocates forthe parties and carefully perusing the order passed by the Tribunal, we find that the Tribunal was fully justified inallowing the assessee’s appeal by taking note of the decisionof this Court in the case of Principal Commissioner of IncomeTax vs. Oberoi Hotels Pvt. Ltd. reported in [2018] 409 ITR 132(Cal). In the said decision it was held that the notice underSection 143(2) of the Act was required to be mandatorily issuedand Section 292BB had no manner of operation. The earliest ofthe decision is that of the Hon’ble Supreme Court in the caseof Assistant Commissioner of Income Tax & Anr. vs. Hotel BlueMoon reported in [2010] 321 ITR 362(SC), wherein it was heldthat if an assessment is to be completed under Section 143(3)read with Section 158BC, notice under Section 143(2) should beissued within one year from the date of filing of the blockreturn. Omission on the part of the assessing authority toissue notice under Section 143(2) cannot be a procedureirregularity and is not curable and, therefore, the requirementof notice under Section 143(2) cannot be dispensed with.This Court in the case of Principal Commissioner ofIncome Tax-11, Kolkata vs. Nopany & Sons reported in 2022(2)TMI399- Calcutta High Court held that the proviso to Section 292BBcould not stand attracted and the said section cannot be madeapplicable to the assessee’s case. Very recently, the Hon’bleSupreme Court in the case of Assistant Commissioner of IncomeTax vs. S.K. Industries reported in [2022] 141 taxmann.com 569 (SC) dismissed the Special Leave Petition filed by the revenueagainst the order of the High Court holding that where theassessing officer of a particular Circle passed an assessmentorder under Section 143(3) without issuing notice under Section143(2) and only in pursuance with the notice issued underSection 143(2), he had no jurisdiction over the assessee at therelevant time and such assessment order was liable to be setaside. It is the submission of the learned standing counselfor the Department that the assessee had not raised thequestion of jurisdiction before the assessing officer butparticipated in the assessment proceedings and, therefore,could not have raised the said issue before the Tribunal. This argument cannot be acceded to for more than onereasons, firstly, there cannot be any estoppel against thestatute. It is not the case of the revenue that the assesseeconsciously waived his right to raise such a jurisdictionalissue. Secondly, the assessee had filed an application beforethe learned Tribunal seeking leave to raise additional groundsand this application was held and after contest the applicationwas allowed. The learned Tribunal, in fact, recorded that theDepartment could not controvert any of the submissions of theassessee on the additional grounds which have been raised and,therefore, the application was allowed taking note of the This argument cannot be acceded to for more than onereasons, firstly, there cannot be any estoppel against thestatute. It is not the case of the revenue that the assesseeconsciously waived his right to raise such a jurisdictionalissue. Secondly, the assessee had filed an application beforethe learned Tribunal seeking leave to raise additional groundsand this application was held and after contest the applicationwas allowed. The learned Tribunal, in fact, recorded that theDepartment could not controvert any of the submissions of theassessee on the additional grounds which have been raised and,therefore, the application was allowed taking note of the matter that the issue goes to the root of the entireproceedings. Thus, we are of the considered view that the learnedTribunal was fully justified in allowing the assessee’s appeal.For the above reasons, the appeal filed by the revenue(ITAT/78/2022) is dismissed and the substantial questions oflaw are answered against the revenue.Consequently, the connected application for stay (IANo.GA/2/2022) also stands dismissed. (T.S. SIVAGNANAM, J.) (HIRANMAY BHATTACHARYYA, J.) A/s.S.Nath