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2015 (1) TMI 1478 - AT - Income TaxValidity of Reopening of assessment u/s 147 - ITO-3 Kashipur jurisdiction over the assessee - assessee has took a plea that the Income Tax Officer-III Kashipur has no jurisdiction over the assessee as the assessee is an old Income-tax assessee which is under the jurisdiction of Income Tax Officer-IV(3) Lucknow - HELD THAT - Since the Assessing Officer having jurisdiction over the assessee was Income Tax Officer-IV(3) Lucknow notice issued under section 148 of the Act by Income Tax Officer-III Kashipur is not a valid notice therefore the assessment framed consequent thereto is not valid and deserves to be annulled. Thus the notice under section 148 of the Act is not valid as it was issued by an Officer having no jurisdiction over the assessee and therefore the assessment framed consequent thereto deserves to be annulled. - Decided against revenue.
Issues Involved:
1. Jurisdiction of the Income Tax Officer (ITO) for issuing notice under section 148. 2. Validity of the assessment framed under section 147/144. 3. Compliance with section 292BB of the Income Tax Act. 4. Estimation of income under section 44AD. 5. Additions under section 68 and section 69 of the Income Tax Act. 6. Disallowance of depreciation and other additions. Issue-wise Detailed Analysis: 1. Jurisdiction of the Income Tax Officer (ITO) for issuing notice under section 148: The primary issue was whether the ITO-III, Kashipur had jurisdiction to issue a notice under section 148 of the Income Tax Act. The assessee argued that the ITO-III, Kashipur did not have jurisdiction as the assessee's PAN was registered under the jurisdiction of ITO-IV(3), Lucknow. The CIT(A) and the Tribunal both found that the ITO-III, Kashipur lacked jurisdiction to issue the notice under section 148. The Tribunal emphasized that for a valid assessment under section 147, a notice under section 148 must be issued by a competent officer. Since the ITO-III, Kashipur did not have jurisdiction, the notice was invalid, and consequently, the assessment was annulled. 2. Validity of the assessment framed under section 147/144: The Tribunal upheld the CIT(A)'s decision that the assessment framed under section 147/144 by ITO-III, Kashipur was invalid due to the lack of jurisdiction. The Tribunal reiterated that an assessment based on an invalid notice is unsustainable in law. 3. Compliance with section 292BB of the Income Tax Act: The Revenue argued that the assessee did not object to the jurisdiction before the completion of the assessment, invoking section 292BB. However, the Tribunal noted that section 292BB does not cure jurisdictional defects. The Tribunal cited judicial precedents to support that erroneous assumption of jurisdiction cannot be validated by section 292BB. 4. Estimation of income under section 44AD: The assessee contended that the income was correctly filed under section 44AD, but due to a clerical error, the turnover was incorrectly mentioned. The CIT(A) did not fully appreciate this argument and upheld the addition made by the AO. However, this issue became moot as the primary assessment was annulled due to jurisdictional defects. 5. Additions under section 68 and section 69 of the Income Tax Act: The CIT(A) and the Tribunal did not delve deeply into the merits of the additions under sections 68 and 69, as the primary issue of jurisdiction rendered the entire assessment invalid. The Tribunal noted that these additions were academic in light of the annulled assessment. 6. Disallowance of depreciation and other additions: Similar to the additions under sections 68 and 69, the disallowance of depreciation and other additions were not specifically addressed by the Tribunal due to the primary jurisdictional issue. The Tribunal's annulment of the assessment rendered these points moot. Conclusion: The Tribunal upheld the CIT(A)'s decision to annul the assessments for both the assessment years in question due to the lack of jurisdiction of the ITO-III, Kashipur. The Tribunal emphasized that a valid notice under section 148 must be issued by a competent officer with proper jurisdiction. Since the primary assessments were annulled, the Tribunal did not delve into the merits of the additions and disallowances made by the AO. The cross objections filed by the assessee were dismissed as infructuous.
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