The Commissioner Of Income Tax-11 ... vs Nagendra Prasad
2023 Latest Caselaw 3462 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                      Miscellaneous Appeal No.662 of 2014
     ======================================================

1. The Commissioner Of Income Tax-11 Patna .

2. Assistant Commissioner of Income Tax, Circle-5, Patna.

... ... Assistant/Appellant/s Versus Nagendra Prasad S/O Sri Suraj Prasad, Suraj Bhawan, Main Road, Buxar.

... ... Respondent/Respondent/s ====================================================== Appearance :

For the Appellant/s : Mrs. Archana Sinha, Advocate For the Respondent/s :

====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE PARTHA SARTHY ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE)

Date : 02-08-2023

1. The appeal is filed against the order of the

Tribunal setting aside an order under Section 143(3)/147 of

the Income Tax Act, 1961.

2. The assessee had initially moved the High Court

relying on the decision of the Hon'ble Supreme Court in

Assistant Commissioner of Income-Tax v. Hotel Blue

Moon [(2010) 321 ITR 362 (SC)] which writ petition was

dismissed refusing invocation of the extraordinary remedy

and relegating the assessee to the statutory remedy.

3. The Tribunal found, relying on the decision in

Hotel Blue Moon (supra) that the proceedings are liable to Patna High Court MA No.662 of 2014 dt.02-08-2023

be struck down. It was held that the return was filed by the

assessee in response to the notice under Section 148 though

delayed and in such circumstance, there should have been a

notice issued under Section 143(2) as has been held in

Hotel Blue Moon (supra).

4. The only question of law arising in the facts and

circumstances of the case is whether notice should have

been issued under Section 143(2) of the Income Tax Act?

5. Admittedly, the notice was issued by the

Assessing Officer under Section 148 of the Act on

14.07.2008 requiring the assessee to file a return within

thirty days. A return was filed much later on 31.03.2009,

after eight and a half months.

6. On identical facts, in M.A. No.239 of 2011

titled as Chand Bihari Agrawal v. Commissioner Of

Income Tax, Central, Patna decided on 25.07.2023, this

Court considered the issue and held against the revenue.

7. We find that the question of law has to be

answered in favour of the assesee and against the revenue.

Hotel Blue Moon (supra) governs the issue which has been

followed in Chand Bihari Agrawal (supra).

Patna High Court MA No.662 of 2014 dt.02-08-2023

8. The Miscellaneous Appeal stands dismissed.

(K. Vinod Chandran, CJ)

(Partha Sarthy, J) Sunil/-

AFR/NAFR                NAFR
CAV DATE
Uploading Date          08.08.2023
Transmission Date