IN THE INCOME TAX APPELLATE TRIBUNAL “C” BENCH, KOLKATA BEFORE SHRI RAJESH KUMAR, AM AND SHRI SONJOY SARMA, JM (Assessment Year:2017-18)

ITO, Ward 3(1), Gangtok Pankhuri Mishra Aaykar Bhawan Poorva, C/o Rajeev Electronics, Palzor Vs. Bhanupath, Gangtok-737103 Road, Gangtok, Sikkim-737101 (Appellant) (

Respondent)

PAN No. BUZPM6177Q Assessee by : Shri Rajeeva Kumar, AR Revenue by : Shri Santanu Ghosh, DR Date of hearing: 02.09.2025 Date of pronouncement: 08.10.2025

O R D E R

Per Rajesh Kumar, AM:

This is an appeal preferred by the assessee against the order of the Commissioner of Income-tax (Appeals) (hereinafter referred to as the “Ld. CIT(A)”] dated 14.05.2024 for the AY 2017-18.

02. At the outset we note that, there is a delay of 19 days in filing the appeal. After hearing rival contentions and after considering the explanation offered by the assessee in the condonation application along with affidavit, we note that the same is for sufficient and genuine reasons and cannot be attributed to the assessee in any manner. Accordingly, the delay for 19 days is condoned and appeal is taken up for adjudication.

03. At the time of hearing, the assessee raised additional ground which is extracted below:

“1. That the Ld. Assessing Officer erred in issuing notice dated 22.09.2018 u/s.143(2) of the Income Tax Act, 1961 without complying with the CBDT Instruction issued vide F. No.225/157/2017/ITA.II dated 23.06.2017. Thus, the notice dated 22.09.2018 issued u/s.143(2) is invalid as per the provisions of the Act.

2. That the Ld. Assessing Officer erred in not mentioning the type under which the case was selected for the scrutiny and hence the notice dated 22.09.2018 น/ร.143(2) of the Income Tax Act, 1961 is bad in law and the assessment order dated 05.12.2019 based on such notice is non-est in law and deserves to be quashed.”

04. After hearing the rival contentions and perusing the material on record, we find that the assessee has raised an additional ground of appeal challenging the jurisdiction of the AO to make addition. In our opinion the issued raised in the additional ground is a purely a legal issue qua which all the facts are available in the appeal folder and no further verification of facts is required from any quarter whatsoever. In our considered view the assessee is at liberty to raise any legal issue before any appellate authority for the first time even when the same has not been raised before the lower authorities. The case of the assessee is squarely covered by the decisions of the Apex court in the case of i) Jute Corporation of India Ltd. Vs CIT in 187 ITR 688, ii) National Thermal Power Co. Ltd v. CIT [1998] 229 ITR 383 and also by the decision of Hon’ble Calcutta High Court in PCIT vs. Britannia Industries Ltd. [2017] 396 ITR 677 (Cal). Therefore, we are inclined to admit the same for adjudication.

05. The ld. Counsel for the assessee submitted that the said ground is purely a legal issue and the assessee is within his legal right to raise the same before any of the appellate authorities at any stage whatsoever. The ld. Counsel for the assessee submitted that the notice u/s 143(2) of the Act has been issued in an invalid format in violation to the CBDT instruction no. F. No. 225/157/2017/ITA-II Dated 23-06-2017 and accordingly, the assessment order passed consequently is void ab initio, ultra virus and nullity in the eyes of law. The ld. Counsel for the assessee submitted that since the issue raised is legal issue which goes to the root of the matter and since no further verification of facts is required to be done from any quarter whatsoever, the legal ground raised by the assessee may kindly be admitted for adjudication. In defense of his arguments the ld. AR relied on the decisions of the Apex court in the case of i) Jute Corporation of India Ltd. Vs CIT in 187 ITR 688 , ii) National Thermal Power Co. Ltd v. CIT [1998] 229 ITR 383 and also by the decision of Hon’ble Calcutta High Court in PCIT vs. Britannia Industries Ltd.

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