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2022 (3) TMI 1466 - HC - Income TaxValidity of Reopening of assessment u/s 147 - jurisdiction of ITO who issued the notice u/s 148 - jurisdiction will be that of DC/AC or ITO - HELD THAT - We have considered the affidavit in reply of one Mr. Suresh G. Kamble, ITO who had issued the notice under section 148 of the Act. Said Mr. Kamble, ITO, Ward 12(3)(1), Mumbai admits that such a defective notice has been issued but according to him, PAN of Petitioner was lying with ITO Ward (12)(3)(1), Mumbai and it was not feasible to migrate the PAN having returned of income exceeding Rs. 30 lakhs to the charge of DCIT, Circle 12(3)(1), Mumbai, as the time available with the ITO 12(3)(1) was too short to migrate the PAN after obtaining administrative approval from the higher authorities by 31st March, 2019. The notice u/s 148 of the Act is jurisdictional notice and any inherent defect therein is not curable. In the facts of the case, notice having been issued by an officer who had no jurisdiction over the Petitioner, such notice in our view, has not been issued validly and is issued without authority in law. No hesitation in setting aside the notice.
Issues: Jurisdiction of Income Tax Officer to issue notice under section 148 of the Income Tax Act, 1961.
In this judgment by the Bombay High Court, the Petitioner challenged a notice dated 30th March, 2019 issued under section 148 of the Income Tax Act, 1961 for A.Y. 2012-13 and the subsequent order rejecting the Petitioner's objection to reopening on various grounds. The primary issue raised was regarding the jurisdiction of the Income Tax Officer (ITO) to issue such a notice. The Petitioner argued that as per the Central Board of Direct Taxes instruction, the jurisdiction for Non-Corporate assessees with income up to Rs. 20 lakhs lies with the ITO, and above Rs. 20 lakhs lies with DC/AC. Since the Petitioner had filed a return of income exceeding Rs. 20 lakhs, the notice should have been issued by DC/AC and not the ITO. The ITO admitted to the defective notice but explained that due to administrative constraints, the PAN of the Petitioner could not be transferred to the jurisdiction of DCIT. The Court held that a notice under section 148 is jurisdictional, and any defect in it is not curable. As the notice was issued by an officer lacking jurisdiction over the Petitioner, it was deemed invalid and without authority in law. Consequently, the Court set aside the notice dated 30th March, 2019 and quashed the order rejecting the Petitioner's objection. In conclusion, the High Court of Bombay ruled in favor of the Petitioner, setting aside the notice issued under section 148 of the Income Tax Act, 1961 and quashing the order rejecting the Petitioner's objection. The Court emphasized the importance of jurisdictional notices and held that any inherent defect in such notices is not curable. The judgment highlighted the necessity for proper authority in law when issuing notices under the Income Tax Act, ensuring that jurisdictional requirements are strictly adhered to.
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