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TMI Blog2021 (2) TMI 181X X X X Extracts X X X X X X X X Extracts X X X X ..... olkata has not issued a notice u/s 143(2) of the Act and also for the reason that the jurisdiction of these cases lies with the ITO and not the DCIT. Appeals of the assessees are allowed. - I.T.A. No. 2517/Kol/2019, I.T.A. No. 2518/Kol/2019, I.T.A. No. 2519/Kol/2019, I.T.A. No. 2520/Kol/2019 - - - Dated:- 3-2-2021 - Sri J. Sudhakar Reddy, Accountant Member And Sri Aby T. Varkey, Judicial Member For the Assessee : Sh. Miraj D. Shah, Adv. For the Revenue : Smt. Ranu Biswas, Addl. CIT ORDER PER J. SUDHAKAR REDDY, AM: All these appeals are filed by the assessees directed against separate orders of the Learned Commissioner of Income Tax (Appeals)-5, Kolkata, [hereinafter the CIT(A) ], passed u/s. 250 of the Income Tax Act, 1961 (the Act ), for the Assessment Year 2012-13. As the issues arising in all these appeals are common, for the sake of convenience, they are heard together and disposed off by way of this common order. 2. In all these cases, the assessees filed e-return of income. Thereafter, the assessments in all these four cases were selected for scrutiny. 2.1. The ld. DCIT, Circle-1, Kolkata issued notices u/s 143(2) of the Act to each of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en as a ground to nullify the assessment. 2.5. On merits, the assessee raised a number of contentions and these were also rejected by the ld. CIT(A) for the reasons given in his order. Aggrieved, the assessee is before us. 3. The ld. Counsel for the assessee repeated the contentions raised by the assessee before the ld. CIT(A). The ld. Sr. D/R relied on the order of the ld. CIT(A). As both the contentions of the assessee and findings of the ld. CIT(A) are stated in the order of the ld. CIT(A), for the sake of brevity, we do not extract the same. 4. Rival contentions heard. On a careful consideration of the facts and circumstances of the case and a perusal of the case law cited as well as the orders of the authorities below, we hold as follows. 5. In the remand report, the AO clearly stated that notice u/s 143(2) of the Act was issued by DCIT, Circle-1, Kolkata. The ld. D/R could not controvert the contention of the assessee that no notice u/s 143(2) of the Act was issued by the DCIT-13(1), Kolkata, who completed the assessment. 5.1. Further, the income of each of all these four assessee companies which are in appeal before us is below ₹2 lakhs. Thus, as per the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee, but he had not issued the notice u/s 143(2) of the Act, within the statutory period prescribed under the Act. Thus, he submits that the assessment is bad in law. 5.1. On merits, he rebutted the findings of the lower authorities. The ld. Counsel for the assessee relied on certain case-law, which I would be referring to as and when necessary. 6. The ld. D/R, on the other hand, submitted that the concurrent jurisdiction vests with the ITO as well as the ACIT and hence the assessment cannot be annulled simply because the statutory notice u/s 143(2) of the Act, was issued by the ITO and the assessment was completed by the ACIT. He further submitted that the assessee did not object to the issue of notice before the jurisdictional Assessing Officer and even otherwise, Section 292BB of the Act, comes into play and the assessment cannot be annulled. On merits, he relied on the orders of the lower authorities. 7. I have heard rival contentions. On careful consideration of the facts and circumstances of the case, perusal of the papers on record, orders of the authorities below as well as case law cited, I hold as follows:- 8. I find that there is no dispute in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion is dated 31.01.2011 and the assessee has filed the return of income on 29.03.2013 declaring total income of ₹ 50,28,040/-. As per the CBDT Instruction the monetary limits in respect to an assessee who is an individual which falls under the category of 'non corporate returns' the ITO's increased monetary limit was upto ₹ 15 lacs; and if the returned income is above ₹ 15 lacs it was the AC/DC. So, since the returned income by assessee an individual is above ₹ 15 lakh, then the jurisdiction to assess the assessee lies only by AC/DC and not ITO. So, therefore, only the AC/DC had the jurisdiction to assess the assessee. It is settled law that serving of notice u/s. 143(2) of the Act is a sine qua non for an assessment to be made u/s. 143(3) of the Act. In this case, notice u/s. 143(2) of the Act was issued on 06.09.2013 by ITO, Ward-1, Haldia when he did not have the pecuniary jurisdiction to assume jurisdiction and issue notice. Admittedly, when the ITO realized that he did not had the pecuniary jurisdiction to issue notice he duly transferred the file to the ACIT, Circle-27, Haldia on 24.09. 2014 when the ACIT issued statutory notice which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ether jurisdiction of Assessing Authority is not dependent on date of accrual of cause of action but on date when it is initiated - Held, yes - Whether once a particular jurisdiction is created, same must be prospective and cannot be retrospective and it has to be interpreted having regard to manner in which it has been sought to be created - Held, yes Assessee 9.3. The Hon ble Supreme Court in the case of CIT vs. Laxman Das Khandelwal [2019] 108 taxmann.com 183 (SC), held as follows:- 7. A closer look at Section 292BB shows that if the assessee has participated in the proceedings it shall be deemed that any notice which is required to be served upon was duly served and the assessee would be precluded from taking any objections that the notice was (a) not served upon him; or (b) not served upon him in time; or (c) served upon him in an improper manner. According to Mr. Mahabir Singh, learned Senior Advocate, since the Respondent had participated in the proceedings, the provisions of Section 292BB would be a complete answer. On the other hand, Mr. Ankit Vijaywargia, learned Advocate, appearing for the Respondent submitted that the notice under Section 143(2) of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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