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TMI Blog2023 (3) TMI 1240X X X X Extracts X X X X X X X X Extracts X X X X ..... section (3) of Section 124 cannot be accepted. On the basis of the aforesaid deliberations, assessment framed on the basis of reasons to believe recorded on 09.05.2016 a/w. notice u/s.148 of the Act dated 25.10.2016 issued by the A.O, i.e. ITO, Ward-1(1), Bhilai, a non-jurisdictional Officer, cannot be sustained and is liable to be quashed. ITO, Ward-1(1), Bhilai at the time of initiating proceedings and issuance of notice u/s.148 dated 25.10.2016 was not vested with any jurisdiction over the case of the assessee, therefore, the aforesaid notice so issued by him de-hors valid assumption of jurisdiction will have no existence in the eyes of law and would be non-est. Non-est notice u/s.148 dated 25.10.2016 issued by the ITO, Ward-1(1), Bhilai can by no stretch of imagination be validated pursuant to the transfer of the case of the assessee by him on 03.08.2017 to ITO Ward-2(1), Bhilai. Appeal of the assessee is allowed. - ITA No.13/RPR/2020 - - - Dated:- 27-3-2023 - Shri Ravish Sood, Judicial Member For the Assessee : Shri S.R Rao, Advocate For the Revenue : Shri Piyush Tripathi, Sr. DR ORDER PER RAVISH SOOD, JM The present appeal filed by the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tal Representative (for short DR ) in the course of hearing of the appeal. On a perusal of the assessment records it transpires that the ITO, Ward-2(1), Bhilai after receiving the assessee s case a/w. record(s), had issued a letter dated 06.10.2017 to the assessee, therein calling upon him to comply with the notice issued u/s.148 of the Act dated 25.10.2016. In sum and substance, the A.O i.e. ITO, Ward-2(1), Bhilai had proceeded with the assessment on the basis of the notice that was issued u/s.148 of the Act dated 25.10.2016 by the ITO, Ward-1(1) Bhilai. The assessee in compliance to the notice issued u/s.148 of the Act dated 25.10.2016 that was issued by the ITO, Ward-1(1), Bhilai filed his return of income on 16.11.2017 declaring an income of Rs.3,42,910/-. On a perusal of the letter dated 28.09.2022 of the ITO, Ward-1(3), Bhilai addressed to the JCIT (ITAT) Raipur, it transpires that as therein stated the jurisdiction over the assessee s case was on 01.11.2017 transferred by the ITO, Ward- 2(1), Bhilai to the ITO, Ward-1(3), Bhilai. 4. Assessment was, thereafter, framed by the A.O i.e. ITO, Ward- 1(3), Bhilai vide his order passed u/s. 143(3)/147 of the Act dated 29.12.2017 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2016. To sum up, it was the claim of the Ld. AR that notice u/s.148 of the Act dated 25.10.2016 that was issued by the ITO, Ward-1(1), Bhilai was liable to be struck down for want of valid assumption of jurisdiction at the stage of reopening of the assessee s case. The Ld. AR in order to fortify his aforesaid claim had drawn my attention to a letter dated 03.08.2017 that was issued by the ITO, Ward-1(1), Bhilai to the ITO, Ward-2(1), Bhilai (enclosed with the letter dated 29.11.2022 of the JCIT, DR). It was submitted by the Ld. AR that the ITO, Ward-1(1), Bhilai vide his aforesaid letter dated 03.08.2017 (supra) had, inter alia, transferred the case of the assessee to the ITO, Ward-2(1), Bhilai by categorically stating that the jurisdiction over his case pursuant to the Notification No.01/2014-15 dated 15.11.2014 was vested with the latter, and had requested him to take appropriate action at his end. It was submitted by the Ld. AR that now when admittedly, as observed by the ITO, Ward-1(1), Bhilai, the jurisdiction over the case of the assessee pursuant to the Notification No.01/2014-15 dated 15.11.2014 was vested with the ITO, Ward-2(1), Bhilai, therefore, the ITO, Ward-1(1), Bhi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of the assessee over the years, which reads as under (relevant extracts of the letter): JURISDICTION HISTORY FROM/AO TO/AO DATE ITO-1(1), Bhilai ITO-1(1), Bhilai 25/10/2016 ITO-1(1), Bhilai ITO-2(1), Bhilai 03/08/2017 ITO-2(1), Bhilai ITO-1(3), Bhilai 01/11/2017 Apart from that, I find from a perusal of the letter dated 28.09.2022 (supra) that the ITO, Ward-1(1), Bhilai had transferred the case of the assessee a/w. records to the ITO, Ward-2(1), Bhilai for the reason that jurisdiction over the assessee s case as per the Notification No.01/2014-15 dated 15.11.2014 of the Joint Commissioner of Income Tax, Range-2, Bhilai was vested with the latter, i.e. ITO Ward- 2(1), Bhilai. On the basis of the aforesaid facts it is clear beyond doubt that jurisdiction over the assessee s case pursuant to Notification No 01/2014-15, dated 15.11.2014 remained vested with the ITO, Ward-2(1), Bhilai. Considering the aforesaid facts, I am unable to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who had framed the assessment in the case of the assessee u/ss.143(3)/147 dated 29.12.2017 had pursuant to vesting of the jurisdiction on 01.11.2017 by the ITO Ward-2(1), Bhilai had at the time of framing of the assessment the requisite jurisdiction over the case of the assessee. In sum and substance, it is a matter of an admitted fact that the assessment in the case of the assessee vide order u/ss.143(3)/147 dated 29.12.2017 had been framed by the A.O i.e. ITO, Ward-1(3), Bhilai, who at the relevant point of time had the requisite jurisdiction over the case of the assessee. My indulgence has been sought for adjudicating as to whether or not the case of the assessee was validly reopened u/s.147 of the Act? 15. As observed by me hereinabove the ITO Ward-1(1), Bhilai who had recorded the reasons to believe on 09.05.2016 and issued notice u/s.148 of the Act dated 25.10.2016, at the relevant point of time was admittedly not having any jurisdiction over the case of the assessee. My aforesaid view is fortified beyond doubt on a perusal of the letter of the ITO Ward-1(1), Bhilai dated 03.08.2017 addressed to ITO Ward-2(1), Bhilai on the basis of which the case of the assessee was, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of sub-section (4) of Section 120 to exercise or perform all or any of the powers and functions conferred on, or assigned to, an Assessing Officer under the Act; therefore, no obligation was cast upon the assessee to call in question his jurisdiction on receipt of notice u/s.148, dated 25.10.2016. My aforesaid conviction that where an assessee is in receipt of notice from an officer who was not vested with the jurisdiction over the case of the assessee either u/s. 124(1) or u/s.127 or by notification or circular or instruction of CBDT, then, no obligation would be cast upon the assessee to call in question his jurisdiction as per the mandate of sub-section (3) of Section 124 of the Act is supported by the orders of the co-ordinate benches of the Tribunal, i.e, ITAT, Gauhati in the case of Balaji Enterprise Vs. ACIT (2021) 187 ITD 111 (Gau.) and the ITAT, Kolkata Bench in the case of OSL Developers (P) Ltd. Vs. ITO, (2021) 211 TTJ (Kol) 621. We further find that a similar view had also been taken by the Hon ble High Court of Gujarat in the case of CIT Vs. Ramesh D Patel (2014) 362 ITR 492 (Guj.). It was observed by the Hon ble High Court that the provisions of sub-section (3) of Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 124 provides that no person shall be entitled to call in question jurisdiction of an Assessing Officer where an action has been taken under Section 132 or section 132A, after the expiry of one months from the date on which he was served with a notice under sub- section (1) of Section 153A or sub-section (2) of Section 153C of the Act or after the completion of the assessment, whichever is earlier. In clear terms, the time limit for raising objection to the jurisdiction of the Assessing Officer prescribed under sub-section (3) of section 124 has a relation to the Assessing Officer's territorial jurisdiction. The time limit prescribed would not apply to a case where the assessee contends that the action of the Assessing Officer is without authority of law and, therefore, wholly without jurisdiction. On the basis of my aforesaid deliberations, I am of the considered view that now when the assessee has assailed the framing of the assessment u/ss.143(3)/147 dated 29.12.2017 on the ground that the initiation of proceedings u/s.147 of the Act by the ITO, Ward-1(1), Bhilai is without authority of law and, therefore, wholly without jurisdiction, then, the aforesaid objection of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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