TaxTMI 
TaxTMI 
2022 (11) TMI 873
X X X X Extracts X X X X
X X X X Extracts X X X X
....1(1), Burdwan by failing to consider that no adverse evidence was adduced on record against the appellant and the purported adverse conclusion reached on that behalf is wholly arbitrary, unreasonable and perverse. 2. FOR THAT the Ld. Commissioner of Income Tax (Appeals)-Burdwan was remiss in upholding the impugned addition in the sum of Rs. 10,89,000/-made by the Ld. Income Tax Officer, Ward 1(1), Burdwan by denying the benefit of exemption claimed on account of the Long Term Capital Gains without considering the factual matrix of the instant case and the specious finding based upon such wrong assumption is entirely opposed to law. 3. FOR THAT the Ld. Commissioner of Income Tax (Appeals)- Burdwan was wholly in error in sustaining the purported addition in an amount of Rs. 10,89,000/- resorted to by the Ld. Income Tax Officer, Ward 1(1), Burdwan exclusively relying on the investigation report of the DGIT(Inv), WB, Sikkim & NER, Kolkata by misreading the facts and circumstances of the instant case and the adverse conclusion reached on that behalf in violation of the statutory prescription is completely unfounded, unjustified and untenable in law. 4. FOR THA....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ance was placed on the judgment of Hon'ble High Court of Calcutta in the case of PCIT vs. Nopany & Sons reported in [2022] 136 taxmann.com 414 (Calcutta) dated 04.02.2022. 6. On the other hand, ld. D/R contended that a valid notice u/s 143(2) was issued to the assessee for initiating the scrutiny proceedings and the assessee has participated in the assessment proceedings and the transfer of assessment records was on account of orders of the higher authority who has directed so for the reason that as per the alphabetical jurisdiction, ITO, Ward-1(1), Burdwan had the jurisdiction over the assessee. He, further, stated that when the case of the assessee is selected for scrutiny the ITO under whom the PAN of the assessee exists, issues the notice and thereafter, as per the alphabetical jurisdiction the case is transferred to the Ld. AO having jurisdiction over the assessee. 7. I have heard rival contentions and perused the records placed before me. Through the legal issue raised in the additional ground has been raised for the first time before me, I find that the same being legal in nature can be raised at any stage as held by Hon'ble Supreme Court of India in the case of Nation....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the assessment order passed by him is a nullity and without jurisdiction? 5. We have heard Mr. Mitra, learned senior standing counsel for the appellant and Mr. Ananda Sen, learned counsel assisted by Ms. Atasi Sarkar for the respondent/assessee. 6. The short issue which falls for consideration is whether the assessing officer, who had jurisdiction over the assessee at the relevant time had issued notice under section 143(2) of the Act before taking up the scrutiny assessment under section 143(3). Before we go into the facts, we take note of the legal position as laid down by the Hon'ble Supreme Court in Asstt. CIT v. Hotel Blue Moon [2010] 188 Taxman 113/321 ITR 362, wherein the Hon'ble Supreme Court held that omission on the part of the assessing officer to issue notice under section 143(2) cannot be a procedural irregularity and the same is not curable and, therefore, the requirement of notice under section 143(2) cannot be dispensed with. Further, we also take note of the decision in the case of CIT v. Gitsons Engineering Co. [2015] 53 taxmann.com 108/231 Taxman 506/370 ITR 87 (Mad.), wherein it was held that the word 'shall' employed in sectio....
X X X X Extracts X X X X
X X X X Extracts X X X X
....gularity committed by the assessing officer. The Tribunal considered the correctness of the finding of the CIT(A) and, on facts, found that both the assessing officers, namely, the assessing officer, who had jurisdiction over the assessee till 6-4-2009 and the assessing officer, who had jurisdiction post the said date had not issued notice under section 143(2) of the Act within the prescribed period of six months from the end of the financial year in which the return was filed. This factual position could not be controverted by the revenue before us. As pointed out by the Hon'ble Supreme Court in the case of Hotel Blue Moon (supra), non-issuance of notice under section 143(2) is not a procedural irregularity and, therefore, it is not curable. Thus, on facts, it having been established that no notice was issued under section 143(2) of the Act, the order passed by the Tribunal was perfectly legal and valid. The revenue also sought to rely upon section 292BB of the Act to justify their stand that notice is deemed to be valid and sought to bring the assessee's case under the circumstances mentioned in section 292BB. This question was considered by the Tribunal and it was pointe....