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TMI Blog2010 (12) TMI 1242X X X X Extracts X X X X X X X X Extracts X X X X ..... or u/s 127. therefore, we quash the assessment order dated 15.2.2005 passed u/s 143(3). we may also observe that the notice dated 17.9.2004 issued u/s 143(2) is clearly barred by limitation as per proviso to section 143(2) because the same was issued and served upon the assessee beyond the period of 12 months from the end of the month the return was filed i.e. 30.10.2002. - Shri H.L.Karwa, Vice President, And Shri N.K.Saini, Accountant Member For the Appellant by : Shri Amit Shukla, Advocate For the Respondent by : Shri Praveen Kumar, D.R. ORDER PER H.L.KARWA, VICE PRESIDENT This appeal filed by the assessee is directed against the order of the Ld.CIT(A)-II, Kanpur dated 28.10.2009 relating to the assessment year 2002-03. 2. Grounds No.1,2 and 3 of the appeal read as under: Because the CIT(A) has erred in law and on facts in holding that; (a) Additional CIT, Range-6, Kanpur stood validly vested with the jurisdiction of AO in the case of the appellant as per order dated 21.1.2003 passed by the CIT-II,Kanpur for in relation to the assessment proceedings for the assessment year 2001-02. (b) as per the said order, the entire cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... count were produced and were put to test check. The AO observed that the assesseecompany has disclosed income from manufacturing of finished leather from raw hide and leather goods manufactured thereform. The business activities of the assessee were stated to remain same as were in the immediate preceding accounting period. The AO framed the assessment under section 143(3) of the Act on 15.2.2005 by making certain additions/disallowances. The assessee challenged the aforesaid assessment order before the ld.CIT(A)-II, Kanpur, who vide his order dated 31st July, 2006 disposed of the appeal of the assessee. Against this order, the assessee came up before the Tribunal. Before the Tribunal, the assessee raised an additional ground which reads as under : (i) Because the mandatory requirement of serving notice under Section 143(2) of the Income-tax Act, 1961 (In short the Act ) within a period of 12 months from the end of the month in which the return has been filed, having not been fulfilled, the Asst. Commissioner of Income-tax-VI, Kanpur could not have passed the assessment order dated 15.2.2005 u/s143(3) of the Act. The Tribunal vide its order dated 16.1.2009 passed in I.T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case was one of them.Therefore, it is very clear that a valid order was passed by the CIT-II, Kanpur conferring the Addl. CIT with the jurisdiction of A.O. for the instant case. 4.3.4 I may mention here that once in terms of the order of the CIT-II, Kanpur (dt. 21/01/2003), the jurisdiction over the impugned case was vested with the Addl. CIT R-VI, the entire case records were transferred to the Addl. CIT, R-VI Kanpur, which included the return of income filed for an Asst. Yr. 2002-03. This is in terms of Explanation to Section 127 of the Act (which is extracted below) : Explanation- In section 120 and this section, the word case in relation to any person whose name is specified in any order or direction issued thereunder, means all proceedings under this Act. in respect of any year which may be pending on the date of such order or direction or which may have been completed on or before such date, and includes also all proceedings under this Act which may be commenced after the date of such order or direction in respect of any year. 4.3.5 The Ld.A.R. very fairly agreed that in case it is held that he Addl.CIT, R-VI had valid jurisdiction over the appellant, the no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 120 or under Section 120(4)(b) or under section 127 of the Act. 5.1 Shri Amit Shukla, Advocate, ld. Counsel for the assessee also submitted that the notice dated 17.9.2004 issued under Section 143(2)by the ACIT-VI, Kanpur (AO) is clearly barred by limitation as per proviso to Section 143(2) of the Act being issued and served beyond the period of 12 months from the end of the month the return was filed i.e. 30.10.2002. In support of this contention, the assessee relied on the following decisions.: 1. ACIT Vs. Hotel Blue Boon, (2010) 321 ITR 362(SC). 2. CIT Vs. Rajeev Sharma,(2010), 40 DTR (All) 129. 3. Virendra Dev Dixit Vs. Asstt. Commissioner of Income Tax, (2010) 41 DTR (All)43. 4. CIT Vs. AVI-Oil India P. Ltd., (2010) 323 ITR 242 ( P H). 5. CIT Vs. AVI-Oil India P.Ltd., (2010) 323 ITR 242 (P H). ). 6. Shri Praveen Kumar, ld.D.R. heavily relied on the order of the ld.CIT(A). 7. We have heard the rival submissions and have also perused the materials available on record. The first issue before us is as to whether the Addl,.CIT, Range-VI, Kanpur was having jurisdiction to act as an AO at the time when he had issued a notice under Section 143(2) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respect, first of which is letter F.No.CIT-II/Scrutiny/(Tech)/KNP/02/03 dated 21.1.2003 written by the CIT-II,Kanpur to Addl.CIT, Range VI, Kanpur, which has already been reproduced by is in para 9.1 above. (i) From the aforesaid letter the ld.D.R. has tried to emphasise that this is an order of the Board as envisaged in sub-clause (b)of subsection (4) of section 120 whereas the ld.A.R., Shri S.K. Garg has pleaded that this is firstly not an order by the CIT, in exercise of the powers given by the Board, if any, and therefore, cannot be termed as an order as envisaged in the provisions of sub-clause (b) of subsection (4) of section 120 read with section 2(7A) of the Act and secondly what this letter conveys is the assignment of the jurisdiction, over the cases of ten assessees mentioned therein including the assessee to the Addl.CIT, Range VI, Kanpur, nothing more nothing less and since, admittedly, neither the assessee was heard before this letter was written nor the concerned Authority stood appointed to act as an Assessing Officer, the assignment of assessee s case to the Addl.CIT, Range VI, Kanpur itself was illegal and bad in law. (ii) After careful consideration o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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