9911796707
TMI Blog2013 (1) TMI 293X X X X Extracts X X X X X X X X Extracts X X X X ..... section 120 of Income Tax Act. It is not the case of the Revenue that the Assessing Officer who has issued the notice u/s 148 was vested with the jurisdiction by virtue of any direction or orders issued under sub-section (1) or (2) of section 120 of the Income Tax Act. Thus, there is no dispute about the jurisdiction vested with the Assessing Officer - ITO, Ward-9(2)-1 over the assessee when the notice u/s 148 was issued by the ITO, Ward-10(3)-4. When it is apparent that the notice u/s 148 was issued by the AO who was not vested with the jurisdiction over the assessee then, the same is patently illegal and void liable to be set aside - in favour of assessee. - IT APPEAL NOs. 5211 & 5290 (MUM.) OF 2011 - - - Dated:- 7-9-2012 - VIJAY ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver allowed the claim of the assessee of carried forward and setting off the losses of the earlier years'. Thus, both the assessee as well as the Revenue are aggrieved by the impugned order of CIT (A) and filed respective appeals. 3. The assessee has raised the following grounds in its appeal: "1. On the facts and circumstances of the case, the CIT (A) has erred in confirming the reopening of the assessment proceedings u/s 148 of the Act as a valid proceedings, though the notice u/s 148 of the Act was issued by the Assessing Officer who did not hold the territorial jurisdiction over the appellant. 2. On the facts and circumstances of the case, the CIT (A) has erred in confirming the reopening of the assessment proceedings u/s 148 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pinion between the two Assessing Officers. As regards the first objection against the validity of reopening, the learned AR of the assessee has submitted that the original assessment made u/s 143(3) on 28.9.2005 by the ITO, Ward-10(3)-4, Mumbai. Thereafter, the address of the company was changed and consequently, the jurisdiction of the Assessing Officer was also changed. Accordingly, the case papers were transferred to the ITO, Ward-9(2)-1, Mumbai. The learned AR of the assessee has further submitted that the assessment of the assessee for the assessment year 2007-2008 was made u/s 143(3) of the Income Tax Act by the ITO, Ward-9(2)-1, Mumbai on 27.11.2009, whereas, the notice u/s 148 for the assessment year under consideration was issued o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t for the assessment year 2007-2008 was completed on 27.11.2009 by the ITO, Ward-9(2)-1 who was having jurisdiction over the assessee as taken over from the ITO, Ward-10(3)-4 due to change of the address of the assessee. Thus, it is clear that when the notice u/s 148 of the Income Tax Act issued on 31.3.2010, the ITO, Ward-10(3)-4 was ceased to have any jurisdiction being an Assessing Officer over the assessee. It appears that after issuing the notice u/s 148, the Assessing Officer, who has issued the said notice, realized the lack of jurisdiction over the assessee and accordingly the reassessment was undertaken by the Assessing Officer-ITO, Ward-9(2)-1, Mumbai having jurisdiction over the assessee. The assessee raised the objection regardi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tten submissions. The issue of administrative jurisdiction has been addressed by the AO while disposing of its objection at page-3 para-6 of the assessment order. I am in agreement with stand taken by the AO. As no point of time to the jurisdiction was held by two officers while the proceedings have been initiated by ITO-10(3)(4) but has been concluded by ITO 9(2)(1) who have administrative jurisdiction of the case. In any case, the issue of territorial / administrative jurisdiction does not carry much weight. As regards the legal objection on change of opinion, after perusal of the original assessment order it cannot be inferred that this issue was specifically examined therein. Taking into account all the facts and circumstances, ground n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice required him to furnish a return. The expression "Assessing Officer" used in the section 148 means 'the Assessing Officer vested with the jurisdiction over the assessee as stipulated in the definition u/s 2(7A) by virtue of the directions / orders passed u/s 120, sub-section (1) (2)'. Thus, the notice u/s 148 is required to be issued by the Assessing Officer who is vested with the jurisdiction over the assessee on the basis of the criteria of territorial area, a person or classes of persons, income or classes of incomes and cases or classes of cases as enumerated in sub-section 3 of section 120 of Income Tax Act. It is not the case of the Revenue that the Assessing Officer who has issued the notice u/s 148 was vested with the jurisdi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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