TMI Blog2015 (10) TMI 918X X X X Extracts X X X X X X X X Extracts X X X X ..... he current financial year 2004-05. The selection for scrutiny of the assessee's case and completion of the assessment was not valid - Decided in favour of assessee. - ITA No.669/lkw/2010 - - - Dated:- 15-7-2014 - SHRI SUNIL KUMAR YADAV AND SHRI. A. K. GARODIA, JJ. For the Appellant : Shri. Rakesh Garg, Advocate For the Respondent : Shri. Y. P. Srivastava, D.R. ORDER Sunil Kumar Yadav (Judicial Member).- This appeal is preferred by the assessee against the order of the Commissioner of Income-tax (Appeals), inter alia, on the following grounds : 1. Because the Commissioner of Income-tax (Appeals)-II, Kanpur has erred on facts and in law in confirming the addition of ₹ 3,17,935 under section 68 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... course of hearing of the appeal, learned counsel for the assessee has submitted that the additional ground is purely a legal ground and it did not require any investigation or enquiry and goes to the root of the case, therefore, the same may be admitted. Finding force in the contentions of learned counsel for the assessee, we admit the additional ground, as it goes to the root of the case and we prefer to adjudicate it at the threshold. Accordingly, the argument on the additional ground was heard. 4. Learned counsel for the assessee has invited our attention to the assessment order with the submission that the assessee has filed the return of income on November 1, 2004 declaring income at ₹ 90,000 and it was processed under section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT v. Sunita Finlease Ltd. [2011] 330 ITR 491 (Chattisgarh) and the hon'ble Calcutta High Court in the case of Amal Kumar Ghosh v. Asst. CIT [2014] 361 ITR 458 (Cal). 5. The learned Departmental representative on the other hand, has contended that notice under section 143(2) of the Act was issued as per time available under the Act, though it may not be within the period prescribed under Instruction No. 10 of 2004. Therefore, for this reason, the assessment cannot be held to be bad. 6. Having given a thoughtful consideration to the rival submissions and from a careful perusal of the orders of the authorities below and the judgments referred to by the assessee, we find that this issue was examined by the hon'ble Chattisgarh Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 04 dated September 20, 2004, was applicable in the present case, in view of the specific stipulation in the circular that 'for returns filed during the current financial year 2004-05, the selection of cases for scrutiny will have to be completed within three months of the date of filing the returns' and considering that the return had admittedly, been filed by the assessee on October 29, 2004, i.e., during the current financial year 2004-05. The selection for scrutiny of the assessee's case and completion of the assessment was not valid. 8. In the case of Amal Kumar Ghosh v. Asst. CIT [2014] 361 ITR 458 (Cal) the issue was examined by the hon'ble Calcutta High Court and their Lordships have also made similar observations ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e from the date of filing the return laid down under section 143(2). Thus, the notice under section 143(2) was not in legal exercise of jurisdiction . 9. The impugned issue has already been examined by the hon'ble High Courts by giving a categorical finding that the instructions issued by the Board are binding on the Department and its Circulars are to be strictly complied with and if they are not followed in letter and spirit, the assessment framed consequent thereto is not valid. In the instant case, since the case was selected for scrutiny after the period prescribed as per Instruction, the selection is not proper. Therefore, the assessment framed consequent thereto is not valid. We accordingly annul the assessment and set aside t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
