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TMI Blog2019 (12) TMI 985X X X X Extracts X X X X X X X X Extracts X X X X ..... as also issued by the ITO, Ward-2, Shimoga calling for particulars with regard to the return of income filed by the Assessee. In response to this letter, the Assessee filed a letter dated 31.5.2011 before ITO, Ward-2, Shimoga stating that the return of income was filed before ITO, Ward-3, Davanagere and he alone would have jurisdiction. Thereafter proceedings were transferred to ITO, Ward-3, Davangere. 3. Thereafter the ITO, Ward-3, Davangere, issued a notice dated 25.7.2011 u/s.142(1) of the Act calling for some details from the Assessee. To the said letter, the Assessee by a letter dated 24.8.2011, submitted that notice u/s.143(2) of the Act is required to be issued prior to framing an assessment u/s.143(3) of the Act. By letter dated 26.8.2011, the AO informed the Assessee that notice u/s.143(2) of the Act dated 25.8.2010 was already issued by the ITO, Ward-2, Shimoga and called upon the Assessee to comply with the requirements mentioned in notice u/s.142(1) of the Act dated 25.7.2011 and that if the Assessee fails to do so, the assessment will be completed u/s.144 of the Act ex parte to the best of AO's judgment. To this notice, the Assessee again sent a letter dated 5.9.2011 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the material available on record . It is proposed to make the following additions. In the interest of natural justice, you are hereby given final opportunity to file your objections if any for the proposed additions for which your case is posted for hearing on Monday, the 26th December, 2011 at 11.30AM. 4.0 Since you have not furnished the books of account, bills and vouchers, the following expenses debited to P & L account, are proposed to be disallowed to the extent of 20% in the absence of details and treating them as not genuine i. Workers Salary Rs. 1,72,800/- ii. Electricity Charges Rs. 29,769/- iii. Telephone & Mobile Charges Rs. 30,475/- iv. Generator Diesel & Maintenance Rs. 1,28,822/- v. News paper charges Rs. 1,279/- vi. Shop Expenses Rs. 13,850/- vii. Printing & Stationery Charges Rs. 4,046/- viii. Travelling Expenses Rs. 30,500/- ix. Vehicle Maintenance Rs. 12,550/- TOTAL Rs. 4,24,091/- I propose to disallow 20% of expenditure of Rs. 4,24,091/- which works out to Rs. 84,818/- and the same will be added to your total income. 5.0 As per the information obtained from Asst. Commissioner of Commercial Taxes, LVO-470, Har ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he AO had issued the notice u/s 143(2). The appellant is questioning the Jurisdiction of the ITO, Ward-2, Shivamogga to issue this notice. This ground is not germane to the appeal. Yet the same 1s discussed only to reveal the mindset of the appellant. As the PAN was lying with ITO Ward-2, Shivamogga, he has rightly exercised Jurisdiction. If the appellant is changing his address, then he has to get the address in his PAN changed. He has failed to do so. Thus, ground is rejected. 5. In response to notices issued by the ITO, Ward-2, Shivamogga, the assessee responded that he has filed his Return of Income with ITO, Ward-3, Davangere along with details. In response, the ITO, Ward-Z, Shivamogga transferred the case to ITO, Ward-3, Davangere. The appellant is disputing this transfer. When the Officer having PAN had assumed Jurisdiction and issued notices, the appellant resisted, claiming ITO, Ward-3, Davangere had jurisdiction. Now the appellant is estopped from questioning the Jurisdiction of ITO, Ward-3, Davangere. It is held that ITO, Ward-3, Davangere has assumed rightful jurisdiction. This ground also fails. 6. The appellant also questions the proprietary of the AO to pas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d under sub-section (4) or sub-section (5) of section 139, whichever is later :" 8. According to the learned counsel for the Assessee since Section 153(1)(b) uses the expression "commencing on the 1st day of April, 1988 and since the Assessment year in this appeal is after 1st day of April, 1988, i.e., 2009-10, the said provision will apply to the case of the Assessee and since the order of assessment was not passed within the period so laid down, the order of assessment should be annulled as illegal. He placed reliance on the decision of the Hon'ble Supreme Court in the case of Smt.Tarulata Shyam and others Vs. CIT 108 ITR 345 (SC) wherein it was held that taxing statutes when they are clear and unambiguous, there is no scope for importing into the statute words which are not there and that if there is "causus omissus", the defect can be remedied only by legislation and not by judicial interpretation." 9. I have considered the above submission and I am of the view that on a plain reading of the provisions of Sec.153(1)(b) of the Act, it is evident that the said provisions applies only to AY 1988-89 or any earlier Assessment year and cannot be applied for AY 2008-09 as contented ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had jurisdiction over the Assessee. Thereafter the Assessee in reply to the notices u/s.142(1) of the Act took a plea that notice u/s.143(2) of the Act ought to have been issued by ITO, Ward-3, Davangere and since the notice u/s.143(2) of the Act dated 25.8.2010 was issued by the ITO, Ward-2, Shimoga, the ITO, Ward-3, Davangere cannot frame an assessment u/s.143(3) of the Act. It is for the first time in his letter dated 3.12.2011 that the Assessee took a stand that there has to be an order u/s.127 of the Act for transfer of jurisdiction from ITO, Ward-2, Shivamogga to ITO, Ward-3, Davangere. The Assessment was getting time barred on 31.12.2011. The Assessee thus acquiesced to the action of the AO at Davangere in framing assessment for AY 2009-10. The Assessee never took a stand that the AO at Davangere had no jurisdiction. The Assessee cannot be allowed to blow hot and cold at the same breath. I am of the view that the AO at Davangere had jurisdiction and he validly assumed jurisdiction and was well within his powers to pass the order of assessment. We find no merits in the argument advanced by the Assessee. 12. On merits of the addition made by the AO, no arguments were advance ..... X X X X Extracts X X X X X X X X Extracts X X X X
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