2025 (1) TMI 1284 - AT - Income Tax

Notice u/s 143(2) issued by the non-jurisdictional officer - As argued jurisdiction could not have been transferred from ITO Ward 11(3) to Circle 11(2) without order u/s 127 - as submitted Jurisdiction lies only with DCIT however the statutory notice u/s 143(2) was issued by the ITO instead of the present Assessing Officer i.e. DCIT. HELD THAT - Revenue has not brought on record an order u/s 127 of the Act passed in order to transfer the case to DCIT Circle 11 (2) New Delhi except making the submissions that assessee should file the objection within one month u/s 124(3) of the Act. Since the issue of notice u/s 143(2) is the basis of initiation of the assessment u/s 143(3) and the jurisdictional officer should have issued the notice and also completed the assessment. The present Assessing Officer has completed the assessment without following the due process of law and we are inclined to hold that the jurisdictional notice u/s 143(2) was not issued by the DCIT before completing the assessment u/s 143(3) of the Act and that there is an unwarranted defect in this case which is not curable. Decided in favour of assessee.

ISSUES PRESENTED and CONSIDERED

The core legal issues considered in this judgment include:

Whether the notice under section 143(2) of the Income-tax Act, 1961, issued by the Income Tax Officer (ITO) was valid given the jurisdictional requirements.
Whether the assessment order passed by the Deputy Commissioner of Income Tax (DCIT) was valid in the absence of a proper jurisdictional transfer order under section 127 of the Act.
Whether the long-term capital gain claimed by the assessee as exempt under section 10(38) of the Act was justifiably disallowed by the Assessing Officer as unexplained credit under section 68, along with the addition of alleged unexplained expenditure under section 69C.
Whether the principles of natural justice were violated by not providing the assessee an opportunity to cross-examine the evidence used against them.

ISSUE-WISE DETAILED ANALYSIS

1. Jurisdictional Validity of the Notice under Section 143(2)

Relevant Legal Framework and Precedents: The jurisdiction of assessing officers is governed by section 124 of the Income-tax Act and CBDT Instruction No. 1/2011, which delineates jurisdiction based on income levels. The instruction specifies that for non-corporate returns with income above Rs. 20 lakhs, the jurisdiction lies with the DC/AC, not the ITO.
Court's Interpretation and Reasoning: The Tribunal observed that the notice under section 143(2) was issued by the ITO, who did not have jurisdiction over the assessee due to the income declared being above Rs. 20 lakhs. The assessment was completed by the DCIT, Circle 11(2), without a fresh notice being issued by the DCIT.
Key Evidence and Findings: The Tribunal noted that the ITO had issued the initial notice, and jurisdiction was later transferred to DCIT without a valid order under section 127.
Application of Law to Facts: The Tribunal applied the legal framework to conclude that the notice was issued without proper jurisdiction, rendering the assessment void.
Treatment of Competing Arguments: The Revenue argued that the assessee should have raised jurisdictional objections within one month as per section 124(3). However, the Tribunal noted that section 124(3) pertains to territorial jurisdiction, not pecuniary jurisdiction.
Conclusions: The Tribunal quashed the assessment order due to the invalidity of the jurisdictional notice.

2. Disallowance of Long-term Capital Gain and Addition of Unexplained Expenditure

Relevant Legal Framework and Precedents: The Assessing Officer relied on section 68 for unexplained credits and section 69C for unexplained expenditure, supported by precedents like Durga Prasad More vs. CIT.
Court's Interpretation and Reasoning: The Tribunal did not delve into the merits of the disallowance due to the jurisdictional defect but noted that the Assessing Officer had treated the scrip as a penny stock based on SEBI investigations.
Key Evidence and Findings: The Assessing Officer had relied on investigations by SEBI and statements from brokers regarding the penny stock nature of the scrip.
Application of Law to Facts: The Tribunal did not apply the law to these facts due to the jurisdictional issue taking precedence.
Treatment of Competing Arguments: The assessee argued that the transactions were genuine and supported by documentation, while the Revenue relied on SEBI findings.
Conclusions: The Tribunal did not make a determination on the merits due to the jurisdictional defect.

3. Principles of Natural Justice

Relevant Legal Framework and Precedents: The principles of natural justice require that an assessee be given an opportunity to cross-examine evidence used against them.
Court's Interpretation and Reasoning: The Tribunal noted the assessee's argument that they were not given an opportunity to cross-examine the evidence but did not make a determination due to the jurisdictional defect.
Key Evidence and Findings: The assessee claimed that statements from third parties were used without providing cross-examination opportunities.
Application of Law to Facts: The Tribunal did not apply the principles due to the primary jurisdictional issue.
Treatment of Competing Arguments: The Tribunal acknowledged the assessee's argument but focused on the jurisdictional issue.
Conclusions: The Tribunal did not resolve this issue due to the jurisdictional defect.

SIGNIFICANT HOLDINGS

Core Principles Established: The Tribunal reinforced the principle that jurisdictional notices must be issued by the correct authority as per CBDT instructions, and any defect in jurisdiction is not curable.
Final Determinations on Each Issue: The Tribunal quashed the assessment order due to the invalidity of the jurisdictional notice and did not address the merits of the disallowance or the principles of natural justice due to the jurisdictional defect.

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