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2021 (9) TMI 1262 - AT - Income TaxRectification of mistake u/s 254 - non issuance of valid notice u/s 143(2) - Whether transfer of case u/s 127 proved? - assessment u/s.143(2) of the Act was completed by the ITO Ward 2(4) Aurangabad whereas the notice u/s.143(2) of the Act was issued to the assessee by the ITO Ward 2(1) Aurangabad - HELD THAT - As in the present case of the assessee it is not the case that notice u/s.143(2) of the Act was not issued to the assessee. The facts in the Hotel Blue Moon case 2010 (2) TMI 1 - SUPREME COURT is distinguished from the facts of the present case in respect of the assessee in so far that the judgment of the Hon ble Supreme Court says notice u/s.143(2) of the Act shall be issued by the AO making assessment but here is the case where such notice was already issued by the Assessing Officer having jurisdiction and now subsequently it was transferred to another AO for making assessment. Assessee has not challenged the jurisdiction of the AO and has constantly filed return with the Assessing Officer having jurisdiction whereas such notice is already sent u/s.143(2) of the Act to the assessee now no further re-issuance of notice is required. Therefore the Hotel Blue Moon case (supra.) is factually distinguishable. Legislative intent becomes clear with reading to Section 127(3) and Section 127(4) of the Act that while Section 127(3) makes right to be heard dispensed with if the case transferred from one Assessing Officer to another in same city place or locality and the assessee has agreed these facts. That Section 127(4) is clear that re-issuance of notice already issued by the Assessing Officer having jurisdiction and now subsequently transferred to another Assessing Officer shall not be required. Considering the legislative intent as enshrined in the provision of Sections 127(3) and Section 127(4) of the Act we are of the opinion that there has crept in mistake apparent from record in the order of the Tribunal 2019 (8) TMI 1764 - ITAT PUNE is hereby recalled subject to dismissal of ground No.1 of the appeal.
Issues:
1. Transfer of jurisdiction between Assessing Officers without informing the assessee. 2. Compliance with provisions of section 127 of the Income Tax Act, 1961. 3. Necessity of re-issuing notice u/s.143(2) of the Act after transfer of case. 4. Jurisdiction of Assessing Officers under section 124 of the Income Tax Act, 1961. 5. Applicability of Section 292BB regarding objection to notice service. 6. Review and rectification of the Tribunal's order dated 06.08.2019. Transfer of Jurisdiction Between Assessing Officers: The Revenue filed a Miscellaneous Application challenging the Tribunal's order that set aside the assessment order due to the transfer of jurisdiction between Assessing Officers without informing the assessee. The Tribunal noted that the assessee should have been informed and a hearing should have taken place during the transfer process, as per Section 127 of the Act. Compliance with Section 127 of the Income Tax Act: The Tribunal analyzed the provisions of Section 127 of the Act, emphasizing the need for a reasonable opportunity of hearing to be given to the assessee during a transfer of jurisdiction between Assessing Officers. The Tribunal clarified that if the transfer is within the same city, locality, or place, as in this case, the opportunity of hearing may not be necessary, as per Section 127(3) of the Act. Re-issuing Notice u/s.143(2) After Transfer of Case: The Tribunal addressed the issue of re-issuing notice u/s.143(2) of the Act after the transfer of the case to another Assessing Officer. It was observed that if the notice was already issued by the Assessing Officer having jurisdiction and subsequently transferred, there might not be a requirement for re-issuing the notice, as per legislative intent under Sections 127(3) and 127(4) of the Act. Jurisdiction of Assessing Officers under Section 124: The Tribunal considered the provisions of Section 124 of the Income Tax Act, 1961, regarding the jurisdiction of Assessing Officers. It was noted that the assessee did not challenge the jurisdiction during the assessment proceedings, which could impact the ability to question the Assessing Officer's jurisdiction post-assessment. Applicability of Section 292BB: The Tribunal discussed the applicability of Section 292BB, which precludes the assessee from objecting to the non-service or improper service of notice u/s.143(2) of the Act if the authorized representative appeared before the Assessing Officer during the assessment proceedings, as per provisions of the Act. Review and Rectification of Tribunal's Order: After detailed analysis and considering the legislative intent behind relevant sections of the Act, the Tribunal recalled its previous order dated 06.08.2019, subject to the dismissal of certain grounds of appeal. The Miscellaneous Application filed by the Revenue was allowed, and the appeal was directed to be listed for hearing accordingly. This summary provides a comprehensive analysis of the legal judgment, addressing each issue involved in detail and highlighting the key points discussed by the Tribunal.
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