2019 (8) TMI 767 - AT - Income Tax

Reopening of assessment u/s 147 - assessee working in Delhi police filing their return in Delhi - notice was issued by AO in Gurgaon - effect of partition in assessment proceedings and non-challange of Jurisdiction in assessment proceedings - land sold situated at a distance of less than 8 kms. from the Municipal Corporation limit of Gurgaon - HELD THAT - Admittedly, in the instant case, the assessee was regularly filing his return of income at Delhi with his PAN No. linked with the AO at Delhi and he was residing at PS, Dwarka-Sector-9, South West District, New Delhi, in government accommodation and was getting salary from the Delhi Police, therefore, merely because the assessee has received the notice, which was sent in his Gurgaon address and has participated in the assessment proceedings will not give jurisdiction to the Assessing Officer at Gurgaon to have jurisdiction over the assessee. So far as the argument of the ld. DR that the assessee has participated in the assessment proceedings and, therefore, has apparently given his consent to the transfer of jurisdiction to the AO of Gurgaon is concerned, the same, in our opinion, would not confer jurisdiction upon the AO who otherwise was not the AO of the assessee. So far as the argument of the Revenue that the assessee has not raised any objection to the jurisdiction within the prescribed time period is concerned, we find merit in the argument of the ld. counsel that the issue to lack of jurisdiction can be raised at any stage in a case where the return has been filed in response to notice u/s 148/158BC/153A. Hon'ble Bombay High Court in the case of Mavany Brothers vs. CIT 2015 (10) TMI 1093 - BOMBAY HIGH COURT while adjudicating an identical issue has held that Reason to believe that income chargeable to tax has escaped assessment is a jurisdictional fact and only on its satisfaction does the AO acquire jurisdiction to issue notice. Thus this lack of satisfaction of jurisdictional fact can never confer jurisdiction and an objection to it can be raised at any time even in appeal proceedings. The mere fact that no objection is taken before the AO would not by itself bestow jurisdiction as the AO. In view of the above discussion and considering the fact that the assessee was employed with Delhi Police and was regularly filing his return of income at Delhi under ITO, Ward 64(3) earlier ITO, Ward 40(3) and since this fact was known to the ITO at Gurgaon, therefore, in absence of any transfer of jurisdiction u/s 127, we hold that the ITO, Gurgaon has no jurisdiction over the assessee. Therefore, the proceedings are quashed. Since the assessee succeeds on this legal ground, the various other grounds on merit are not being adjudicated being academic in nature.

Issues Involved:
1. Validity of jurisdiction assumed by the Assessing Officer (AO).
2. Validity of reopening the assessment under Section 148 of the Income Tax Act.
3. Treatment of income from the sale of land as capital gains or business income.
4. Entitlement to deductions under Sections 54B and 54F of the Income Tax Act.

Detailed Analysis:

1. Validity of Jurisdiction Assumed by the Assessing Officer:

The assessee argued that the AO in Gurgaon did not have jurisdiction over him as he was regularly assessed in Delhi, being an employee of the Delhi Police. The AO in Gurgaon issued notice under Section 148 without a valid transfer of jurisdiction under Section 127 of the Income Tax Act. The Tribunal found merit in the assessee's argument, noting that the PAN was linked to the ITO in Delhi and that the AO in Gurgaon lacked inherent jurisdiction. The Tribunal relied on the decision of the Punjab & Haryana High Court in the case of Lt. Col. Paramjit Singh, which held that only the AO who initially assessed the income has the jurisdiction to reopen the assessment unless the case has been transferred under Section 127. Therefore, the notice issued by the AO in Gurgaon was quashed due to lack of jurisdiction.

2. Validity of Reopening the Assessment under Section 148:

The Tribunal upheld the assessee's contention that the reopening of the assessment was invalid. The AO in Gurgaon issued the notice under Section 148 based on the information that the assessee sold agricultural land but did not declare the income. However, the Tribunal noted that the AO in Gurgaon did not have jurisdiction over the assessee, and hence, the notice was void ab initio. The Tribunal emphasized that the reopening of the assessment should be done by the AO who has jurisdiction over the assessee, which in this case was the AO in Delhi.

3. Treatment of Income from the Sale of Land:

The AO treated the income from the sale of land as business income, arguing that the assessee, along with others, entered into a collaboration agreement with a developer to develop the land into a residential housing project. The AO contended that the activities undertaken by the assessee and others were in the nature of a business venture. The CIT(A), however, treated the entire sale consideration as long-term capital gains. The Tribunal, having quashed the reassessment proceedings on jurisdictional grounds, did not adjudicate this issue on merits.

4. Entitlement to Deductions under Sections 54B and 54F:

The CIT(A) denied the benefit of deductions under Sections 54B and 54F, stating that the assessee could not substantiate the investment in agricultural land or construction of a house property within the prescribed time. The Tribunal did not adjudicate this issue on merits due to the quashing of the reassessment proceedings on jurisdictional grounds.

Separate Judgments:

The Tribunal delivered a common judgment for all the appeals, including those of the co-owners (Shri Devender Kumar and Shri Parvinder Kumar), based on similar reasoning. All appeals filed by the assessees were allowed, and those filed by the Revenue were dismissed.

Conclusion:
The Tribunal quashed the reassessment proceedings due to the lack of jurisdiction of the AO in Gurgaon. Consequently, the other issues on the merits of the case were not adjudicated. The appeals filed by the assessees were allowed, and those by the Revenue were dismissed.

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