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TMI Blog2021 (11) TMI 772X X X X Extracts X X X X X X X X Extracts X X X X ..... issue in favour of the assessee and held that the assessment framed by Assessing Officer who was not having pecuniary jurisdiction to frame such assessment was bad in law. - Decided in favour of assessee. assessment order passed u/s 143(3) of the Act by the ACIT being without jurisdiction is bad in law and the same is accordingly set aside. - Decided in favour of assessee. - I.T.A. No.339/Kol/2021 - - - Dated:- 28-10-2021 - Shri Sanjay Garg, Judicial Member For the Appellant : Shri Somnath Ghosh, Advocate For the Respondent : Shri Jayanta Khanra, JCIT, Sr. DR ORDER The present appeal has been preferred by the assessee for the assessment year 2016-17 against the order dated 20.07.2021 Commissioner of Income Tax (Appeals), National Faceless Appeal Centre [hereinafter referred to as CIT(A) ] passed u/s 250 of the Income Tax Act (hereinafter referred to as the Act ). The assessee in this appeal has taken the following grounds of appeal: 1. FOR THAT the Ld. Commissioner of Income Tax (Appeals)- NEAC failed to appreciate that none of the conditions precedent existed for the Ld. Assistant Commissioner of Income Tax, Circle 9(1). Kolkata for his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot of the case, hence I proceed to decide this legal ground first. 3. The ld. Counsel for the assessee has submitted that the returned income of the assessee was less than ₹ 30 lacs. The ld. Counsel has further submitted that as per the relevant statutory provisions not only the territorial jurisdiction but also the pecuniary jurisdiction of the Income Tax Officers/Assessing Officer has been fixed by the CBDT and that if the returned income is less than ₹ 30 lacs in case of corporate assessee in metro cities, the jurisdiction to frame to assessment lies to the Income Tax Officer whereas if the returned is more than ₹ 30 lacs, the jurisdiction lies with the concerned ACIT/JCIT. The ld. counsel has submitted that the jurisdiction to pass assessment order in this case lies with Income Tax Officer, but the assessment has been done by ACIT who did not have the pecuniary jurisdiction to pass the assessment order in this case. The ld. DR has not disputed the aforesaid factual position. However, he has submitted that the concerned ACIT being the overall in-charge of the concerned ward was competent to frame the assessment. 4. I have considered the rival contenti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g cases to ITOs and DCs/ACs is causing hardship to the taxpayers, as it results in transfer of their cases to a DC/AC who is located in a different station, which increases their cost of compliance. The Board had considered the matter and is of the opinion that the existing limits need to be revised to remove the abovementioned hardship. An increase in the monetary limits is also considered desirable in view of the increase in the scale of trade and industry since 2001, when the present income limits were introduced. It has therefore been decided to increase the monetary limits as under: Income Declared (Mofussil areas) Income Declared (Metro cities) ITOs ACs/DCs ITOs DCs/ACs Corporate returns Upto ₹ 20 lacs Above ₹ 20 lacs Upto ₹ 30 lacs Above ₹ 30 lacs Non-corporate returns Upto ₹ 15 lacs Above ₹ 15 lacs U ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision of this Tribunal in the case of Hillman Hosiery Mills Pvt. Ltd. vs. DCIT, in ITA No. 2634/Kol/2019, order dated 12.01.2021. We find that the issues that arise in this appeal are clearly covered in favour of the assessee. This order followed the principles of law laid down in a number of other decisions of the ITAT, Kolkata Bench on this issue. 5.3. Kolkata B Bench of the Tribunal in the case of Hillman Hosiery Mills Pvt. Ltd.(supra) held as follows: 10. In this case, the ITO Ward-3(3), Kolkata, issued notice u/s 143(2) of the Act on 04/09/2014. In reply, on 22/09/2014, the assessee wrote to the ITO, Ward-3(3), Kolkata, stating that he has no jurisdiction over the assessee. Thereafter on 31/07/2015, the DCIT, Circle-11(1), Kolkata, had issued notice u/s 142(1) of the Act to the assessee. The DCIT, Circle-11(1), Kolkata, completed assessment u/s 143(3) of the Act on 14/03/2016. The issue is whether an assessment order passed by DCIT, Circle-11(1), Kolkata, is valid as admittedly, he did not issue a notice u/s 143(2) of the Act, to the assessee. This issue is no more res-integra. This Bench of the Tribunal in the case of Soma Roy vs. ACIT in ITA No. 462/Kol/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction of this case and who had completed the assessment on 26/12/2017 i.e., ACIT, Circle-1(1), Durgapur. Under these circumstances, the question is whether the assessment is bad in law for want of issual of notice u/s 143(2) of the Act. 9. This Bench of the Tribunal in the case of Shri Sukumar Ch. Sahoo vs. ACIT in ITA No. 2073/Kol/2016 order dt. 27.09.2017, held as follows:- 5. From a perusal of the above Instruction of the CBDT it is evident that the pecuniary jurisdiction conferred by the CBDT on ITOs is in respect to the 'non corporate returns' filed where income declared is only upto ₹ 15 lacs ; and the ITO doesn't have the jurisdiction to conduct assessment if it is above ₹ 15 lakhs. Above ₹ 15 lacs income declared by a non- corporate person i.e. like assessee, the pecuniary jurisdiction lies before AC/DC. In this case, admittedly, the assessee an individual (non corporate person) who undisputedly declared income of ₹ 50,28,040/- in his return of income cannot be assessed by the ITO as per the CBDT circular (supra). From a perusal of the assessment order, it reveals that the statutory notice u/s. 143(2) of the Act was issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statute was crossed by him. Therefore, the issuance of notice by the ACIT, Circle-27, Haldia after the limitation period for issuance of statutory notice u/s. 143(2) of the Act has set in, goes to the root of the case and makes the notice bad in the eyes of law and consequential assessment order passed u/s. 143(3) of the Act is not valid in the eyes of law and, therefore, is null and void in the eyes of law. Therefore, the legal issue raised by the assessee is allowed. Since we have quashed the assessment and the appeal of assessee is allowed on the legal issue, the other grounds raised by the assessee need not to be adjudicated because it is only academic. Therefore, the additional ground raised by the assessee is allowed. 7. In the result, appeal of assessee is allowed. 9.1. This Bench of the Tribunal in the case of Krishnendu Chowdhury vs. ITO reported in [2017] 78 taxmann.com 89 (Kolkata-Trib.) held as follows:- Return of income of assessee was ₹ 12 lakhs - As per CBDT instruction, jurisdiction for scrutiny assessment vested in Incometax Officer and notice under section 143(2) must be issued by Income-tax Officer, Ward-I, Haldia and none other - But ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice, the entire proceedings would be invalid. 8. The law on the point as regards applicability of the requirement of notice under Section 143(2) of the Act is quite clear from the decision in Hotel Blue Moon's case (supra). The issue that however needs to be considered is the impact of Section 292BB of the Act. 9. According to Section 292BB of the Act, if the assessee had participated in the proceedings, by way of legal fiction, notice would be deemed to be valid even if there be infractions as detailed in said Section. The scope of the provision is to make service of notice having certain infirmities to be proper and valid if there was requisite participation on part of the assessee. It is, however, to be noted that the Section does not save complete absence of notice. For Section 292BB to apply, the notice must have emanated from the department. It is only the infirmities in the manner of service of notice that the Section seeks to cure. The Section is not intended to cure complete absence of notice itself. 10. Respectfully following the propositions of law laid down in all these case-law and applying the same to the facts of the case, we hold that the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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