Principal Commissioner Ofincome Tax-5, Kolkata v. M/S. Dhanlaxmi Conclave Pvt.ltd

O-51 ITAT/214/2022GA/2/2022 IN THE HIGH COURT AT CALCUTTASpecial Jurisdiction [Income Tax]ORIGINAL SIDE PRINCIPAL COMMISSIONER OFINCOME TAX-5, KOLKATA -Versus- M/S. DHANLAXMI CONCLAVE PVT.LTD. Appearance:Mr. Prithu Dudheria, 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.2518/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) issued by theDCIT, Circle-1, Kolkata was bad in law withoutconsidering the fact that the Assessee did notraise any question/objection regarding thejurisdiction of the Assessing Officer issuingthat notice within the limitation period forraising such question/objection as providedunder Section 124(3)(a) of the Income Tax Act,1961 i.e., within 1 month of the service ofthe impugned notice under Section 143(2)of the case the Learned Income Tax AppellateTribunal has erred in law in holding that thenotice under Section 143(2) issued by theDCIT, Circle-1, Kolkata was bad in law withoutconsidering the fact that the Assessee did notraise any question/objection regarding thejurisdiction of the Assessing Officer issuingthat notice within the limitation period forraising such question/objection as providedunder Section 124(3)(a) of the Income Tax Act,1961 i.e., within 1 month of the service ofthe impugned notice under Section 143(2) issued by the DCIT, Circle-1, Kolkata and thisobjection was raised by assessee for the firsttime only before the Learned CIT(A) on oraround 13.09.2019, i.e., long after even thecompletion of the assessment under Section143(3) on 29.03.2015 ?objection was raised by assessee for the firsttime only before the Learned CIT(A) on oraround 13.09.2019, i.e., long after even thecompletion of the assessment under Section143(3) on 29.03.2015 ?(ii) Whether on the facts and in the circumstancesof the case the Learned Income Tax AppellateTribunal was correct in holding that, since asper income criterion fixed vide CBDTinstruction No.1/2011 the jurisdiction of thecase of the assessee should have been with anITO because the total income as per return ofincome of Assessment Year 2012-13 was onlyRs.29,210/- and the upper limit for corporatecases to be assessed with ITO’s beingof the case the Learned Income Tax AppellateTribunal was correct in holding that, since asper income criterion fixed vide CBDTinstruction No.1/2011 the jurisdiction of thecase of the assessee should have been with anITO because the total income as per return ofincome of Assessment Year 2012-13 was onlyRs.29,210/- and the upper limit for corporatecases to be assessed with ITO’s being Rs.30,00,000/-, the notice under Section143(2) issued by the DCIT, Circle-1, Kolkatawas bad in law, without recognizing thatdeparture of administrative orders cannot betaken as ground to nullify the assessment ? Rs.30,00,000/-, the notice under Section143(2) issued by the DCIT, Circle-1, Kolkatawas bad in law, without recognizing thatdeparture of administrative orders cannot betaken as ground to nullify the assessment ? 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 anynotice 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.