Principal Commissioner Ofincome Tax-5, Kolkata v. Bhubaneshwari Developers Pvt.ltd

O-52 ITAT/220/2022GA/2/2022 IN THE HIGH COURT AT CALCUTTASpecial Jurisdiction [Income Tax]ORIGINAL SIDE Special Jurisdiction [Income Tax] PRINCIPAL COMMISSIONER OFINCOME TAX-5, KOLKATA -Versus- BHUBANESHWARI DEVELOPERS PVT.LTD. Appearance:Mr. Tilak Mitra, Adv.Mr. Soumen Bhattacharya, Adv....for the appellant.Mtr. Jawed Ahmed Khan, Adv.Mr. Talha Ahmed, Adv.Mr. Bhaskar Sengupta, Adv... . for the respondent. BEFORE: The Hon’ble JUSTICE T.S. SIVAGNANAM -And- The Hon’ble JUSTICE HIRANMAY BHATTACHARYYA Date : 6[th] December, 2022.The Court : This appeal filed by the revenue underSection 260A of the Income Tax Act, is directed against theorder dated 3[rd] February, 2021 passed by the Income TaxAppellate Tribunal, “B” Bench, Kolkata (the Tribunal) in ITANo.2520/Kol/2019 for the assessment year 2012-13. The revenue has suggested the following substantialquestions of law for consideration: (i)Whether on the facts and in the circumstancesof the case the Learned Income Tax AppellateTribunal has erred in law in holding that thenotice under Section 143(2) of the Income TaxAct, 1961 issued by the DCIT, Circle-1,Kolkata, was bad in law without consideringthe fact that the Assessee did not raise anyquestion/objection regarding the jurisdictionof the Assessing Officer issuing that noticewithin the limitation period of raising suchquestion/objection as provided under Section124(3)(a) of the Income Tax Act i.e., withinone month of the service of the impugnednotice under Section 143(2) issued by theDCIT, Circle-1, Kolkata and not even duringthe assessment proceedings and such objectionwas raised by assessee for the first time onlymuch later before Commissioner of Income Tax(Appeals) on or around 13.09.2019, i.e., longafter the completion of the assessment underSection 143(3) of the Act on 29.03.2015 ?of the case the Learned Income Tax AppellateTribunal has erred in law in holding that thenotice under Section 143(2) of the Income TaxAct, 1961 issued by the DCIT, Circle-1,Kolkata, was bad in law without consideringthe fact that the Assessee did not raise anyquestion/objection regarding the jurisdictionof the Assessing Officer issuing that noticewithin the limitation period of raising suchquestion/objection as provided under Section124(3)(a) of the Income Tax Act i.e., withinone month of the service of the impugnednotice under Section 143(2) issued by theDCIT, Circle-1, Kolkata and not even duringthe assessment proceedings and such objectionwas raised by assessee for the first time onlymuch later before Commissioner of Income Tax(Appeals) on or around 13.09.2019, i.e., longafter the completion of the assessment underSection 143(3) of the Act on 29.03.2015 ?(ii) Whether on the facts and in the circumstancesof the case the Learned Income Tax AppellateTribunal has erred in law in holding that, asper income criterion fixed vide CBDTinstruction no.1/2011, the jurisdiction of thecase of the assessee should have been with anIncome Tax Officer (ITO) because the totalincome declared in the return of income forof the case the Learned Income Tax AppellateTribunal has erred in law in holding that, asper income criterion fixed vide CBDTinstruction no.1/2011, the jurisdiction of thecase of the assessee should have been with anIncome Tax Officer (ITO) because the totalincome declared in the return of income for the Assessment Year 2012-13 was only Rs.13,240/- and the upper limit for corporatecases to be assessed by ITOs was Rs.30,00,000/-, and therefore notice underSection 143(2) of the Act issued by the DCIT,Circle – 1, Kolkata without recognising thatdeparture of administrative orders cannot betaken as ground to nullify the assessment wasbad in law ? We have heard Mr. Prithu Dudheria, learned standingcounsel for the appellant/revenue and Mr. Jawed Ahmed Khan,learned counsel assisted by Mr. Talha Ahmed and Mr. BhaskarSengupta, learned Advocates for the respondent/assessee. the Assessment Year 2012-13 was only Rs.13,240/- and the upper limit for corporatecases to be assessed by ITOs was Rs.30,00,000/-, and therefore notice underSection 143(2) of the Act issued by the DCIT,Circle – 1, Kolkata without recognising thatdeparture of administrative orders cannot betaken as ground to nullify the assessment wasbad in law ? We have heard Mr. Prithu Dudheria, learned standingcounsel for the appellant/revenue and Mr. Jawed Ahmed Khan,learned counsel assisted by Mr. Talha Ahmed and Mr. BhaskarSengupta, learned Advocates for the respondent/assessee. The short question involved in the instant case iswhether the notice required to be issued under Section 143(2)was issued. The Tribunal has referred to a remand reportsubmitted by the Assessing Officer wherein the Department couldnot controvert the contention made by the assessee that nonotice under Section 143(2) of the Act was issued by the DeputyCommissioner of Income Tax, Circle-13(1), Kolkata who completedthe assessment. Further, the Tribunal has also noted therelevant decisions and rightly held that the assessment orderis bad in law for the reason that the Assessing Officer passedthe order under Section 143(2) of the Act without issuing any notice 143(2). We find that there is no substantial question oflaw arising for consideration in this appeal. Accordingly, the appeal fails and isdismissed. Consequently, the connected application stands closed. (T.S. SIVAGNANAM, J.) (HIRANMAY BHATTACHARYYA, J.) S.Das/As.