2019 (4) TMI 2164 - AT - Income Tax

Validity of reopening of assessment - AO Ludhiana jurisdiction to issue notice or not? - addition of unexplained share capital u/s 68 - HELD THAT - The issue of notice u/s 148 is a pre-requisite for completion of assessment under section 147. As per Section 148 the AO means the AO vested with jurisdiction over the assessee as stipulated under section 120 sub section 1 2. Thus, the notice u/s 148 is required to be issued by the AO who is vested with the jurisdiction over the assessee on the basis of the criteria of territorial or class of persons mentioned in sub section 3 of Section 120 of the Income Tax Act, 1961. This is not the case of Revenue where the AO who issued the notice under section 148 was vested with the jurisdiction by the virtue of any order or direction issued under Sub Section 1 or 2 of the Section 120. Since the notice has been issued by ACIT, Circle 7 instead of ACIT, Circle-5, who is not vested with the jurisdiction, the notice issued under section 148 is treated as void ab initio and liable to be set aside. Consequently the reassessment made on such notice is not sustainable. Decided against revenue.

Summary

Issues:
Jurisdictional error in deletion of addition on account of unexplained share capital under section 68.
Validity of notice under section 148 and jurisdiction of Assessing Officer.
Applicability of Section 124(3)(a) of the Income Tax Act, 1961.

Jurisdictional Error in Deletion of Addition on Account of Unexplained Share Capital under Section 68:
The Revenue filed an appeal against the order of the Ld. CIT(A), Ludhiana, challenging the deletion of an addition of Rs. 1,00,00,000 made on account of unexplained share capital under section 68. The Revenue argued that the CIT(A) erred in law by holding the notice under section 148 as invalid due to jurisdictional issues. The Revenue contended that the Assessing Officer did not have jurisdiction over the case of the assessee. The CIT(A) had deleted the addition based on the jurisdictional error, which the Revenue disputed.

Validity of Notice under Section 148 and Jurisdiction of Assessing Officer:
The notice under section 148 was issued by the ACIT, Circle-7 Ludhiana for the A.Y. 2009-10. The assessee raised objections to the notice after the expiry of the time limit allowed under Section 124(3)(a) of the Income Tax Act, 1961. The assessee argued that the ACIT, Circle-7 did not have jurisdiction over the case, and the notice should be considered void ab initio. The Revenue cited a case where the High Court upheld the validity of a notice issued by an officer with concurring jurisdiction. However, the Tribunal noted that in the present case, the Assessing Officer who issued the notice did not have jurisdiction over the assessee, rendering the notice void.

Applicability of Section 124(3)(a) of the Income Tax Act, 1961:
The Tribunal analyzed the jurisdictional aspects of the case, emphasizing that the Assessing Officer issuing a notice under section 148 must have jurisdiction over the assessee as per the criteria specified in Section 120 of the Income Tax Act, 1961. It was observed that the ACIT, Circle-7 did not have jurisdiction over the assessee, as evidenced by the assessments completed by ACIT, Circle-5 for other assessment years. The Tribunal held that the notice under section 148 issued by the ACIT, Circle-7 was void ab initio and set aside, rendering the reassessment unsustainable. The Tribunal refrained from delving into the merits of the case, as the issue of jurisdiction had been conclusively decided.

In conclusion, the Tribunal dismissed the appeal of the Revenue, emphasizing the importance of jurisdiction in issuing notices under section 148 for the completion of assessments under section 147. The judgment highlighted the necessity for the Assessing Officer to have the requisite jurisdiction over the assessee to ensure the validity of notices issued under the Income Tax Act.