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TMI Blog2014 (1) TMI 1791X X X X Extracts X X X X X X X X Extracts X X X X ..... cordingly ground of the assessee is allowed. Jurisdiction of the case lies at New Delhi and not at Srinagar and accordingly present assessment cannot be made by the AO, Srinagar and the same is therefore, held to be invalid. X X X X Extracts X X X X X X X X Extracts X X X X ..... er return of income in response to notice under s. 148 of the Act. Thereafter, a detailed questionnaire along with notices under s. 142(1) was issued on 17th Sept., 2009 fixing the case of the assessee on 5th Oct., 2009. In above referred questionnaire, the assessee was asked to explain the following : 'In this connection you are requested to intimate the undersigned whether any return in response to the notice under s. 148 of the Act dt. 30th March, 2009 has been filed by you or not. If yes, please give the number and date of acknowledgement receipt and furnish a photo copy of the same. As per your bank account No. SB 332 maintained with J&K Bank Ltd., Chanapora, Srinagar there are aggregate credits of ₹ 2427,518 credited on different dates. In this regard you are requested to intimate the source of such credits. Also intimate your source of income.' 2. On the date of hearing, none attended the proceedings nor any reply was received in this office. To be fair and reasonable to assesee, a show cause dt. 9th Oct., 2009 was issued and sent through speed post, asking the assessee to furnish the requisite information on or before 23rd Oct., 2009. It was also intimat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. not eligible 25-8-2005 2. 2006-07 4640003353 19-7-2006 3. 2007-08 4640017494 July, 2007 4. 2008-09 11314901022310 22-3-2010 5. 2009-10 113141460220310 22-3-2010 6. 2010-11 202419560250311 25-3-2011 However, there is no proof of the returns for the asst. yrs. 2003-04 and 2004-05. 5. Rejoinder to the remand report from the appellant dt 5th March, 2013 In response to the hearing conducted by your honour in the above case and further to the remand report issued/received by your honour from the ITO, Ward 3(1), Srinagar, we would like to submit our observations on the remand report submitted by him. 5.1 That the proof of having furnished returns of income by the assessee with ITO, Ward 46(4), New Delhi stands already confirmed by the said remand report for the asst. yrs. 2005-06, 2006-07, 2007-08 and 2010-11. The assessee has not filed her IT returns for the asst. yrs. 2002-03 and 2003-04 with ITO, Ward-46(3), New Delhi since her income was never vested with the AO, Ward-3(1), Srinagar.. 5.2 That the assessee has all along been submitting that she has been residing at 612, Neelpadam-11, Sector IV, Vaishali, Ghaziabad, UP since the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... beyond his jurisdiction stand already forwarded to your honour along with our earlier replies. 5.7 That the assessee asserts that there has been no non co- operation/non-compliance of notices issued to her since the earlier notices, if any, have been issued at her Srinagar address and no notice has been addressed at her residence at Neelpadam Kunj, Vaishali, Ghaziabad, UP except for notice received on 20th Nov., 2009 when the assessee was incidentally in Srinagar for a short visit. 5.8 That the assessee has already filed detailed reply before your honour dt. 11th May, 2005 wherein the assessee has agitated the action of the AO not only with reference to the documentary evidence produced but also based on judicial pronouncements as decided by the Hon'ble Courts wherein such actions by the AO have been held devoid of any merits, bad in law and ab initio illegal. Concluding the assessee would like to submit that the proceedings are ab initio vide and beyond any jurisdiction of the AO and therefore, the order passed is fit to be quashed on the merits of the case. 6. Determination. 6.1 The brief histoiy of the case is that the AO received information from the J&K Bank Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the jurisdiction of the case is generally decided by the place of residence. There is no denial that the appellant has a place of residence at Srinagar and was also operating a bank account over there. The AO at Srinagar has rightly assumed the jurisdiction. So far filing of return at Delhi is concerned it must be out of the assumed jurisdiction. So far filing of return at Delhi is concerned it must be out of the own volition and not by specific assignment of jurisdiction by any IT authority. Regarding change of her residence from Srinagar to Neelpadam Kunj Vaishali, Ghaziabad UP is concerned, in normal parlance the jurisdiction of the appellant should have been in Gaziabad and not in Delhi. Therefore, the appellant is wrongly emphasing the issue of jurisdiction and trying to take shelter under the jurisdiction which in fact may not have been a correct jurisdiction. Since there was no return of income filed prior to asst. yr. 2005-06 and there were substantial deposits in the bank account of the appellant, the appellant for the present assessment year cannot take the plea of non-filing of return due to nontaxable income unless explained otherwise. For the asst. yr. 2003-04, whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he AO that the assessee is filing his return at Delhi and that the AO has no jurisdiction over the case. Thus, it is established that there has been no service of the notice and at the time of issuance of notice no approval of the Addl. CIT had been obtained. The learned CIT(A) taken recourse to s. 292BB of the IT Act, 1961 ignoring the fact that the assessee did not co-operate in assessment proceedings and always objected on the points : (i) That there has been no valid service of the notice. (ii) That the AO has no jurisdiction over the assessee. Further s. 292BB is not applicable to asst. yr. 2003-04 and there has been no compliance as is evident from the assessment order. (iii) It is important to note that submissions were sent by speed post on 15th Dec., 2009 delivered on 16th Dec., 2009 and orders issued on 18th Dec., 2009. There is no mention of these submissions in the assessment order and consequently the learned CIT(A) has erred in referring to s. 292BB. It was accordingly submitted that the order of the AO is bad in law and needs to be cautioned. 5. With regard to the issue of jurisdiction, the learned counsel for the assessee argued that the learned CIT(A) has e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... March, 2009. In this regard, there is no dispute to the fact that the approval of Addl. CIT, Range-Ill, Srinagar, was obtained vide letter No. 1147 dt. 30th March, 2009 only. There is no reference of any earlier notice under s. 148 of the Act. The learned counsel for the assessee, Mr. Upender Bhat, chartered accountant invited our attention to the letter dt. 1st Nov., 2008 issued by the ITO Ward-1, Sringar, which clearly refers to the notice issued by the said office under s. 148 for the impugned assessment year which is dt. 23rd Jan., 2009 and letter dt. 8th Nov., 2007 in this regard. For the sake of convenience, the said letter appearing at paper book-6 is reproduced as under : "Sub : Assessment proceedings for the asst. yr. 2003-04-Reg. Please refer to this office notice under s. 148 of the IT Act, 1961 for the asst. yr. 2003-04 dt. 23rd Jan., 2008 and letter dt. 8th Nov., 2007. 2. In this connection, you are requested to intimate the undersigned whether return in response to the above notice has been filed by you or not. If yes, please give the date and receipt No. If no return in response to the above notice has been filed then please intimate whether the return for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e under s. 148 on 23rd Jan., 2008 without obtaining the approval from the Addl. CIT, which approval, in fact, was taken vide letter No. 1147 dt. 30th March, 2009 which is evident from p. 1 of AO's order as reproduced hereinabove. As per s. 151(2), no notice under s. 148(1) can be issued by an AO, who is below the rank of Jt. CIT, after the expiry of four years from the end of the relevant assessment year, unless the Jt. CIT is satisfied, on the reasons recorded by such AO, that it is a fit case for the issue of such notice. In the present case, such satisfaction of Jt. CIT/Addl. GIT was taken only on 30th March, 2009 whereas notice under s. 148 was issued on 23rd Jan., 2008 which is prior to the said satisfaction or approval of Jt./Addl. CIT. Therefore, on this account, the notice issued under s. 148 is bad in law and is liable to be quashed. Therefore, the reassessment proceedings initiated are directed to be quashed. Accordingly ground No. 1 of the assessee is allowed. 9. As regards the jurisdiction issue, as submitted by the learned counsel for the assessee, there is no dispute to the fact that the assessee has been filing the return of income since inception i.e. asst. yr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 260A was filed. It was the date on which the appeal was filed which would be the material point of time for considering as to in which Court the appeal was to be filed. On the dates on which the present appeals were filed, the AO of the assessee was the AO at New Delhi and therefore, High Court, Delhi would have jurisdiction to entertain these appeals. In view of the foregoing, it was held that the present appeals were maintainable before High Court, Delhi. When the AO itself has been changed from One place to another, the High Court exercising jurisdiction in respect of the territory covered by the transferee AO would be the one which would have jurisdiction to hear the appeal under s. 260A." 10. Therefore, in the facts and circumstances of the case, there can be only one AO in respect of the case and in the present case, the assessee since its inception is being assessed at New Delhi!This fact was available on record before both the authorities below, has been dealt by the AO in the remand report as well as by the learned CIT(A). Therefore, in the facts and circumstances of the case, the jurisdiction of the case lies at New Delhi and not at Srinagar and accordingly pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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