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TMI Blog2017 (10) TMI 927X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment framed is void ab initio. As far as transfer of jurisdiction under section 127 is concerned, the mandatory and prior requirement of the law for having the valid order on basis of positive Agreement between two competent authorities, which is admittedly missing in the present facts, as explained in aforesaid Hon’ble Supreme Court decision in Norul’s case [2016 (10) TMI 982 - SUPREME COURT], the transfer made by one ITO to another ITO operating under different CCIT’s, cannot be sustained and accordingly, the resultant assessment order passed is held to be nullity. Thus hold that notice under section 143(2) on 15/05/2013 by ITO Ward II(3) Gurgaon was time barred and transfer made by Ghaziabad ITO to Gurgaon ITO without valid/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iction over the assessee, so notice u/s 143(2) issued on 28/08/2012 is bad and non jurisdictional and non est and further notice u/s 143(2) dated 15/05/2013 is time barred and is beyond the stipulated time limit under section 143(2) proviso. So assessment framed on basis of invalid and non est notices u/s 143(2) by Gurgaon ITO Ward II(3) is palpably bad and non jurisdictional and deserves to be quashed in light of admitted facts. 4. For sake of convenience, ITAT rule 11 is reproduced below: 11. Grounds which may be taken in appeal.- The appellant shall not, except by leave of the Tribunal, urge or be heard in support of any ground not set forth in the memorandum of appeal, but the Tribunal, in deciding the appeal, shall not be con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice issued u/s 143(2) dated 28/08/2012 and 15/05/2013 in this case is bad in law, without jurisdiction, and also the assessment order passed on the foundation of such notice and order passed by Ld CIT-A, are liable to quashed That on the facts and in the circumstances of the case and in law, the notices issued u/s 143(2), order passed by Ld AO thereon, and impugned order of Ld CIT-A are liable to be quashed . Before closing this application, we wish to humbly submit that consistent views of the Hon ble courts in identical similar cases in assesee s favor, we humbly goad on your honors to please accept our this application of additional legal grounds and allow the same in light of various decisions which covers the presen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lid. Secondly the transfer made between ITO Ward 2(1) Ghaziabad to ITO Ward II(3) Gurgaon without valid order passed under section 127 on basis of positive Agreement between 2 CCIT s is apparently invalid. Reliance was placed by Ld. counsel of the assessee on following decisions: i) Delhi E bench of ITAT decision in case of Al Faheem Meatex Exports Pvt Ltd order dated 09/06/2017 in ITA 6122/Del/2015 (copy placed on records) ii) Hon ble Supreme Court decision in case of Noorul Islam Education Trust vide order dated 21/10/2016 in civil appeal number 10234/2016 (copy placed on records) 7. Against aforesaid submissions of assessee s counsel, ld. DR pleaded that additional ground raised by the assessee should not be admitted. Ld DR plea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being purely legal and jurisdictional ground which goes to the root of the matter and for which necessary facts are available on record. In admitting this additional ground I am supported by recent Hon'ble P H high court decision in case of VMT Spinning reported at (389 ITR 326) and Hon ble Delhi high Court decision in case of Silver Line reported at 383 ITR 455, wherein Hon ble Appex court decision in case of NPTC 229 ITR 383 is relied. Following this I admit the additional grounds raised by the assessee. 9. On the dates which are noted hereinabove in this order, it remains undisputed that firstly the officer who has framed impugned assessment namely ITO Ward II(3) Gurgaon has issued notice u/s 143(2) belatedly on 15/05/2013 which i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssued on 29/08/2011 by DCIT circle Ghaziabad. Therefore this tribunal in said cited decision came to conclusion that notice under section 143(2) which should have been issued by 30/09/2011 by correct jurisdictional officer was not issued and hence assessment was quashed. The decision relied by Ld DR is on different and distinguishable facts. Had there been no transfer between two assessing officers, as noticed above then the situation would have been different but since in present case the person who initiated proceedings under section 143(2) that is ITO 2(1) Ghaziabad himself admitted that jurisdiction lies with ITO Ward II(3) Gurgaon who has ultimately passed the impugned order, then it was must be proved that correct jurisdictional offic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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