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2019 (4) TMI 1308 - AT - Income TaxJurisdiction of AO - transfer of case u.s 127 - validity of issuance of notice u/s 143(2) by the Dy. CIT (IT)-1, Hyderabad - AO at Kurnool had transferred the file to the AO at Hyderabad - Notice beyond the period of six months from the date of filing of returns - period of limitation - curable defect u/s 292B - HELD THAT - We find that u/sub-section 3 of section 127, it is provided that provisions of sub-section 1 2 are not applicable and no such opportunity is to be given to the assessee, where the transfer is from any AO, to any other AO where the Offices of such officers are situated in the same city, locality or place. We find that the AO at Kurnool had transferred the file to the AO at Hyderabad and therefore, even if they are both under the jurisdiction of the same Pr. CIT at Hyderabad, the notice u/s 127(1) has to be given to the assessee and it is only the Pr. Director General or the Pr. CIT or Pr. CIT who can transfer the case u/s 127. No such procedure has been followed by the Deptt. Therefore, we are of the opinion that the issuance u/s 143(2) by the Dy. CIT (IT)-1, Hyderabad is without any authority and also beyond the period of six months from the date of filing of returns and therefore, is barred by limitation and hence, not sustainable and the consequent Assessment order passed by the Asstt. CIT (IT) Hyderabad is void ab initio.
Issues Involved:
1. Jurisdiction of the Assessing Officer (AO) in passing the assessment order. 2. Validity of the assessment order and additions made by the AO. 3. Specific additions and disallowances upheld by the Commissioner of Income Tax (CIT) (A). Issue-wise Detailed Analysis: 1. Jurisdiction of the AO in Passing the Assessment Order: The primary issue raised by the assessee was the jurisdiction of the AO in Hyderabad to pass the assessment order. The assessee argued that the return was filed electronically as a non-resident and initially processed by the AO at Kurnool. The jurisdiction was later transferred to the AO in Hyderabad without following the procedure under section 127 of the Income Tax Act, which mandates giving the assessee an opportunity of being heard. The assessee contended that the notice issued by the AO in Hyderabad was beyond the permissible time limit and without proper authority, rendering the assessment order null and void. The Revenue, on the other hand, argued that the transfer of jurisdiction was proper since the AO at Kurnool recognized the non-resident status of the assessee and transferred the case to the AO in Hyderabad, who had the appropriate jurisdiction over non-residents. The Revenue also contended that the assessee did not object to the jurisdiction during the assessment proceedings, and thus, could not raise the issue at this stage. The Tribunal found that the notice issued by the AO in Hyderabad was beyond the specified time limit and that the transfer of jurisdiction was not in accordance with section 127 of the Act. The Tribunal held that the issuance of the notice by the AO in Hyderabad was without authority and barred by limitation, rendering the assessment order void ab initio. 2. Validity of the Assessment Order and Additions Made by the AO: Given the Tribunal's finding on the jurisdiction issue, the assessment order passed by the AO in Hyderabad was held to be null and void. Consequently, the Tribunal did not delve into the merits of the additions made by the AO, as addressing these would be an academic exercise given the invalidity of the assessment order itself. 3. Specific Additions and Disallowances Upheld by the CIT (A): The specific additions and disallowances upheld by the CIT (A) included: - Addition of ?1,46,435 under short-term capital gains due to discrepancies between Form 26AS and the return of income. - Disallowance of the set-off of short-term capital loss of ?13,58,290. - Addition of ?24,673 under the head 'Income from House Property'. - Addition of ?54,00,000 as unexplained money under section 69A of the Income Tax Act. - Addition of ?1,74,400 as unexplained expenditure under section 69C of the Income Tax Act. - Disallowance of deduction claimed under section 80C amounting to ?20,296. - Assessment of total income at ?1,41,82,750 and the demand raised of ?27,91,360. - Initiation of penalty proceedings under section 271(1)(c). Since the assessment order itself was declared void, the Tribunal did not address these specific additions and disallowances on their merits. Conclusion: The Tribunal allowed the assessee's appeal on the grounds of jurisdiction, declaring the assessment order null and void. Consequently, the other grounds of appeal on the merits of the additions were not addressed. The assessee's appeal was treated as partly allowed.
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