9911796707
TMI Blog2021 (12) TMI 646X X X X Extracts X X X X X X X X Extracts X X X X ..... e area, or where his business or profession is carried on. It is an undisputed fact that the business of the assessee is in the State of Maharashtra and not in Uttar Pradesh. Therefore, the notice was issued by an Assessing Officer not holding jurisdiction over the assessee. That being so, the notice is null and void and it is held to be so. In ITO vs. M/s Arti Securities Services Ltd. [ 2020 (11) TMI 310 - ITAT LUCKNOW] it was held by the Lucknow Bench of the Tribunal that where notice under section 143(2) of the I.T. Act had not been issued by an Officer having jurisdiction over the assessee, the assessment order as well as the order passed by the ld. CIT(A), were bad in law. Finding the grievance of the assessee, calling in question the jurisdiction of the Assessing Officer, to be justified, we accept the same. Accordingly, Ground no.1 and the Additional Ground nos.10,11 and 12 are accepted. The notice issued under section 143(2) of the Act is, therefore, quashed as null and void - all the proceedings consequent thereupon, including the assessment order as well as the order under appeal, are quashed - Decided is favour of assessee. - ITA No.341/LKW/2017 - - - Dated:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct. 5. BECAUSE the Pr. CIT has failed to show and specify as to how the order passed by the Assessing Officer ( AO ) could be said to have been passed without making enquiries or verification which should have been made in the facts and circumstances of the case and as such Explanation 2(i) of section 263 of the 'Act' does not apply in the present case. 6. BECAUSE the AO passed the assessment after adequate enquiry, as he thought was required, and one has to keep in mind distinction between 'lack of enquiry' and 'inadequate enquiry' and such a course of action of revisionary power under section 263 of the Act would be open only under the case of 'lack of enquiry' as held by the Hon'ble Delhi High Court in the case of CIT Vs. Sunbeam Auto Ltd. reported in [2010] 189 TAXMAN 436 (Delhi). 7 BECAUSE judgment of Hon'ble Allahabad High Court in the case of CIT Vs. Jagdish Kumar Gulati reported in 269 ITR 71 (All.) been relied upon by the Pr. CIT is distinguishable on facts as in the said case the AO himself had made an office note that proper enquiry had not been made due to lack of time. 8. BECAUSE the AO passed the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion under section 263 of the Act may not be taken in the case. The date of compliance was fixed for 07.12.2016. The notice was returned un-served, with the remark Left address . The Pr. CIT again issued a notice dated 06.12.2016 and got the same served on the assessee's Counsel by the Income Tax Inspector. Thereafter, the matter was discussed with the Counsel of the assessee, Shri Pradeep Kapoor, FCA, who attended on behalf of the assessee. 5. On considering the facts of the case, the reply of the assessee and the material available on record, the Pr. CIT was of the view that the assessee s contention was not tenable and, therefore, he held that the assessment order dated 25.3.2015 passed by the Assessing Officer under section 143(3) of the Act for assessment year 2012-13 was erroneous insofar as it was prejudicial to the interests of the Revenue and accordingly, he cancelled the assessment order as per the provisions of section 263(1) of the Act. He, accordingly, directed the Assessing Officer to frame a fresh assessment order as per law, after making necessary inquiries and examination of the issues involved and affording a fair and reasonable opportunity of being heard t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er collateral (subsequent) proceedings had been initiated on a valid legal platform or not, and for examining the validity of assumption of jurisdiction to initiate collateral proceedings, and hence as per law, the assessee should be permitted to challenge the validity of the order passed under section 263 of the Act on the ground that the assessment order was non est. 11. In Hema Knitting Industries vs. ACIT (supra), the Chennai C Bench of the Tribunal held that the dispute or defect as regards jurisdiction can always be subject matter of legal scrutiny when questioned; and that as long as such issue has not reached finality, it is always open to question or challenge in judicial proceedings, and that therefore, it was open to the assessee to take up this issue in the second round of litigation. 12. From the above decisions, in the absence of any decision to the contrary, it is clear that the validity of any decree can be challenged on the ground of lack of jurisdiction at any stage. It is also a fact that this issue was raised by the assessee before the Pr. CIT, vide letter dated 29.12.2016 (APB:3 12). The relevant portion, i.e., para 2 of the letter dated 29.12.2016 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; or where the question is one relating to areas within the jurisdiction of different Principal Director General or Director General or Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner, by the Principal Director General or Director General or Principal Chief Commissioners or Chief Commissioners or Principal Commissioner or Commissioner concerned or, if they are not in agreement, by the Board or by such Principal Director General or Director General or Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner as the Board may, by notification in the Official Gazette, specify. (3) No person shall be entitled to call in question the jurisdiction of an Assessing Officer- (a) where he has made a return under sub-section (1) of section 115WD or under sub-section (1) of section 139, after the expiry of one month from the date on which he was served with a notice under sub-section (1) of section 142 or sub-section (2) of section 115WE or sub-section (2) of section 143 or after the completion of the assessment, whichever is earlier; (b) where he has made no such return, after the expiry of the time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 013] 29 taxmann.com 78 (Mumbai), the notice issued under section 148 of the I.T. Act by an Assessing Officer not having jurisdiction over the matter was held to be illegal and void. 18. In PCIT vs. Mohd. Rizwan, Prop. M/s M.R. Garments , in ITA No.100 of 2015, it was held by the Hon'ble jurisdictional Allahabad High Court that since the notice issuing authority had no jurisdiction, the entire subsequent proceedings conducted by the Assessing Officer were illegal. 19. In ITO vs. M/s Arti Securities Services Ltd. , 123 taxmann.com 395 (Lucknow Trib.), it was held by the Lucknow Bench of the Tribunal that where notice under section 143(2) of the I.T. Act had not been issued by an Officer having jurisdiction over the assessee, the assessment order as well as the order passed by the ld. CIT(A), were bad in law. 20. In view of the above, finding the grievance of the assessee, calling in question the jurisdiction of the Assessing Officer, to be justified, we accept the same. Accordingly, Ground no.1 and the Additional Ground nos.10,11 and 12 are accepted. The notice issued under section 143(2) of the Act is, therefore, quashed as null and void. Consequently, all the proce ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
