9911796707
TMI Blog2009 (12) TMI 701X X X X Extracts X X X X X X X X Extracts X X X X ..... scribed under section 143(2) of the Act. Accordingly, it has been stated that the assessment completed under section 144 is bad in law and needs to be treated and considered as null and void Ground No. 4 is against considering the transfer of property to have taken place in the financial year 2004-05 merely on the basis of the date of development agreement dated March 31, 2005. Briefly stated, the facts in this case are that the Income-tax Officer (HQ) CIB, Pune, issued notice under section 142(1) calling for the return of income of the assessment year 2005-06. In the notice, it was specifically mentioned that "in case you have filed return of income, kindly submit the xerox copy of the same". As per the order of the Income-tax Office ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t without considering the reply filed by the assessee in response to the notice issued under section 142(1) by the Assessing Officer which is not in accordance with the accepted and well established norms of assessment and therefore, the order under section 144 passed by the Assessing Officer is bad in law and deserves to be cancelled. It was further submitted that best judgment assessment order under section 144 passed merely by issuing notice under section 142(1) by ignoring the fact that section 142 contains the provisions in respect of inquiry before assessment does not empower to make assessment without following the proper procedures as prescribed under section 143 of the Act as no notice under section 143(2) has been issued by the In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment order under section 144 of the Income-tax Act. Non-compliance with the statutory notices under section 142(1) empowers the Assessing Officer to pass an ex parte assessment order. Thus, the contention of the assessee was rejected in respect of legal issue. On the merits, the Commissioner of Income-tax (Appeals) allowed partly relief on account of indexation cost and also allowed the benefit of co-ownership as the assessee was having 50 per cent. share in the property. Accordingly, the long-term capital gain was restricted to Rs. 22,41,346. Now, the assessee is in appeal here before the Tribunal. The contentions raised before the Commissioner of Income-tax (Appeals) were reiterated by learned counsel for the assessee here befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncome tax Officer who is having jurisdiction over a particular assessee or other assessees falling under his jurisdiction. As per our information and knowledge and also in our considered view, the Income-tax Officer (HQ) CIB, Pune, on receipt of some information can ask a particular assessee to furnish the details related to such information and to furnish the details of his assessment where a particular assessee is assessed. In the present case, the Income-tax Officer (HQ) CIB, Pune, issued notice under section 142(1) calling for the return of income for assessment year 2005-06 and the assessee had filed the acknowledgment receipt of return of income. In response to notice under section 142(1), the assessee filed reply on September 4, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsideration and then should have passed a correct order as per the provisions of law. The Commissioner of Income-tax (Appeals) was also wrong in not deciding the legal issue in favour of the assessee, especially when the Income-tax Officer (HQ) CIB, Pune, is not the Assessing Officer of the assessee. Without having jurisdiction to assess any person, the order passed was void ab initio and liable to be quashed. The apex court in the case of Raza Textiles Ltd. v. ITO [1973] 87 ITR 539 has held that ; "no authority, much less a quasi judicial authority, can confer jurisdiction on itself by deciding a jurisdictional fact wrongly". It is further held that "it is incomprehensible to think that a quasi judicial authority like the Income-tax Off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rse, he can call for information in respect of filing of return or in respect of permanent account number, etc., of a particular assessee. After receiving the required information, if the Income-tax Officer feels it necessary, he can send the details to the Income-tax Officer, who has the jurisdiction over a particular assessee. Therefore, in our considered view, issuance of notice under section 142(1) itself is without jurisdiction. The Income-tax Officer (HQ) CIB, Pune, has completed the assessment under section 144 even without issuing statutory notice under section 143(2), which is mandatory for allowing opportunity of being heard to the assessee for completion of assessment under section 143(3) or under section 144. No such notice has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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